hunter of justice

Could Stupak-Pitts have a silver lining?

For years I never worried much about an outright reversal of Roe v. Wade, because I thought that the political instincts of conservative Justices would cause them to blink before they took that ultimate step, even if they had the five votes to do it.  If the right to choose were ever actually taken away from American women, the mostly dormant, somewhat ambivalent pro-choice majority would rise like a phoenix and exact revenge.  Goodbye to suburban mom Republican votes. And, although bad decisions have chipped away at it, Roe is still good law, at least formally.

More recently, I'm less certain about this underlying political calculation. If each state could decide whether to allow or prohibit abortion, many would opt for pro-choice laws much as they have today, and many women living in states where abortion was illegal would be able to travel to a location where they could obtain the procedure. 

Of course, it is also true that many would not be able to afford the time, the travel and the procedure. But those are only the poor women. My fear, to be blunt, is that if middle-class women basically retained the option to have an abortion, either formally through their state's law or informally through their own economic capacity, there would be no political price to pay for retracting the federal constitutional right entirely. And sooner or later, conservatives would figure that out.

Now Priscilla Smith, a savvy analyst of reproductive rights issues, has posted an intriguing essay at Balkinization in which she argues that the Stupak-Pitts amendment to the health reform bill might reverse this trend toward fragmentation along economic lines by putting the majority of women in the same sinking boat. Following are excerpts:

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. ...

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:

• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension ..., in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so...

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim...

Why the Stupak amendment is unconstitutional

By Cardozo Law Professor Marci Hamilton, published in Writ:

...Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade and its progeny secured for women. While other restrictions on abortion (including the Hyde Amendment) have been upheld by the Supreme Court, this is a far more expansive and repressive move against women, and it surely institutes an undue burden on a woman's right to obtain an abortion in consultation with her doctor. Although it is not clear precisely where the boundary line lies, it is very clear that this move transgresses any reasonable interpretation of the line the Court's cases draw.

The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists' battle to take away Americans' right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine -- than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.

Stupak amendment would result in massive cut in abortion access

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold.  Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.)  The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

New proposal attempts to thread abortion needle in health reform

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the public plan decides to cover abortion, it would have to hire private contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s proposal would “tip the balance away from women’s access to reproductive health care. Abortion should not be treated any differently from any other medical benefit or procedure,” Ms. Rubiner said. “It is our hope and expectation that the secretary would decide to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We think the public option will become the pro-life option.”

The bill stipulates that in every part of the country, there must be at least one insurance plan that provides coverage of abortions and at least one that does not.

Douglas D. Johnson, legislative director of the National Right to Life Committee, said Mr. Ellsworth’s proposal was “a phony compromise. It serves no purpose except to assist Speaker Pelosi in peeling votes away from an amendment that would flatly prohibit the public plan from paying for elective abortions,” Mr. Johnson said. That amendment was offered by Representative Bart Stupak, Democrat of Michigan. Mr. Johnson said Mr. Ellsworth’s proposal authorized “a money-laundering scheme under which the health secretary would hire an agent to pay abortion providers.”

The Congressional Research Service said recently that money received by the government insurance plan, including premiums, “may be classified as federal funds or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under the House bill, he said, abortion services could be financed “only by special private premiums that are segregated” from other money. Thus, he concluded, the House bill, “as it currently stands, does not authorize governmental funding of abortion.”

Split on abortion threatens health reform

CQ reports on an abortion impasse in the House that will hit the wall when the health reform bill goes to the floor. Anti-choice Dems are insisting that there be no allowance of abortion services in any plan to be offered in insurance exchanges, a position that would effectively preclude coverage of abortion for millions of women.

A showdown is shaping up among Democrats as abortion foes press House leaders to change the health care bill to explicitly ban abortion funding, or at least permit a floor vote on the issue. The effort led by Bart Stupak of Michigan and Daniel Lipinski of Illinois could have far-reaching implications for the fate of the legislation when the House takes up the health care overhaul late next week.

Stupak, who has been at the forefront of a group of several dozen anti-abortion Democratic dissidents, said he would likely vote against a rule providing for floor action on the health care overhaul bill if party leaders do not come his way. “I’ve got to have somewhere to responsibly express my opinion and that of my district,” Stupak said.

House Majority Leader Steny H. Hoyer of Maryland points to the abortion disagreement as perhaps the most important unresolved issue as he prepares to move the measure to the floor. Stupak said he would look for ways to work with Republicans, if necessary, and moderate senators including Bob Casey of Pennsylvania to override the decision by House Speaker Nancy Pelosi , D-Calif., to omit an outright ban on abortion funding from the legislation she unveiled Thursday.

The anti-abortion Democrats want to win language that would essentially extend the existing abortion funding ban known as the “Hyde amendment” to the new and expanded programs that would be created by the health care overhaul. Mindful that abortion is a politically divisive issue within her caucus, Pelosi and her leadership team have sought to promote a compromise, but the anti-abortion Democrats consider it to be too weak.

The compromise language is similar to current restrictions on the use of federal Medicaid funds. The provision would ensure that federal dollars are kept in separate accounts when they flow into health insurance plans, and that federal accounts could not be used to fund an abortion.

TRO stops enforcement of Oklahoma abortion law

An Oklahoma state court judge has issued a temporary restraining order to stop enforcement of what would be the nation's most intrusive reporting statute. The Oklahoma law would require the reporting of potentially identifying (although anonymous) information about every woman obtaining an abortion, as well as including her reason for wanting an abortion. The Center for Reproductive Rights sought the TRO after the state received a postponement of the hearing on a motion for preliminary injunction until after the effective date of November 1.

According to Women's e news:

...Former state Rep. Wanda Jo Stapleton, an Oklahoma City Democrat who brought the lawsuit with Lora Joyce Davis, [said], "This is one of dozens of bills piled on year after year by the Oklahoma legislature to place obstacles in the path of women. The bill points a public finger at women and is intended to scare them to death."...

... "The Oklahoma bill takes all of the intrusive information from very personal questions and puts it all in one place," said Elizabeth Nash, who specializes in state policy for the Guttmacher Institute. "It's the most egregious."...

"Women in small towns can be identified by nosey neighbors or, equally important, they can be misidentified when the guessing games start," Stapleton said....The measures are just the latest round in an "avalanche of anti-choice bills" proposed in Oklahoma since 2005 when "extremist Republicans" took control of the state House, Stapleton said.

Harsh new abortion law looms in Oklahoma

An Oklahoma state court judge will hear arguments October 30 on a motion for preliminary Injunction filed by the Center for Reproductive Rights to stop a new law from taking effect that would set up web-based reports containing information about women seeking abortions. Under the law, the Oklahoma health department will post information about women who obtain abortions, including race, age, marital status and the reason for the abortion. Doctors who do not report the information to the health department would be subject to civil and criminal sanctions.

The challenge is not to the constitutionality of the law as it infringes on individual liberty, but instead argues that the law violates a provision of the Oklahoma state constitution that forbids any statute from having more than one subject. The claim is based on the range of requirements and prohibitions in the bill imposed on various actors (including a ban on sex-selective abortions as well as the reporting requirements).  From The Guardian:

Women seeking abortions in Oklahoma are to be forced to reveal an array of personal information, such as the state of their relationships, how many children they have and their race, which will be posted on an official website. Abortion rights groups say the new law is intended to intimidate women because, although it does not require them to reveal their names, other information to be made public will sometimes be enough to identify them.

The move, which takes effect on 1 November, comes after a judge struck down a law that would have forced women to undergo an ultrasound and to listen to a doctor's description of the embryo or foetus before a termination.

Abortion rights groups have filed a lawsuit to try to block the new law, which requires women seeking abortions to provide doctors with answers to 34 questions including their age, marital status and education levels, as well as the number of previous pregnancies and abortions. Women are required to reveal their relationship with the father, the reason for the abortion and the area where the abortion was performed. Doctors are obliged to pass the information on to the Oklahoma health department, which will post it on a public website.

Jennifer Mondino, a lawyer for the Centre for Reproductive Rights, said the reporting requirements were intended to "make women more nervous about going to [abortion] doctors". "The intent of this law is to further restrict access to abortions in Oklahoma," she said. "There are a number of states that have a reporting requirement but not as broad and detailed as in Oklahoma. It's very unusual to consider putting such detail about patients on a website."

Oklahoma was a state with a small population, Mondino said, and "questions about race, number of children, other details can be used to identify a patient. There's a trend in Oklahoma, every year putting out new laws intended to restrict women's access to abortions and to make it harder for doctors to provide them," she said.

Doctors face prosecution and loss of their medical licences for failing to provide the state with the required information. Mondino said that would make doctors hesitant to perform terminations for fear of unintentionally falling foul of the law. "Anti-choice advocates in other states watch and see what happens in Oklahoma. Oklahoma has become a leader in this," she said.

Two years ago, Oklahoma passed a law barring public funds from being used for abortions with the exception of rape or incest. The effect has been to prevent virtually all hospitals in the state from carrying out terminations because they are unable to prove that some part of the procedure has not been subsidised by public money. Many hospitals had in any case already stopped terminations under pressure from politicians and intimidation by anti-abortion groups. About 96% of the state's counties have no abortion provider and most women seeking terminations have to travel.

Last month a judge struck down a state law requiring a doctor about to perform an abortion to carry out an ultrasound with the screen positioned in front of the mother and to then describe the developing limbs and organs of the foetus. The woman could not be forced to look at the screen but would have no choice but to listen to the doctor's description. The law required that the ultrasound be carried out vaginally if the pregnancy was in its early stages in order to get a clear picture. Rape victims were not exempted.

The sponsor of that law, the Republican state senator Todd Lamb, said it was intended to give the mother "as much information as possible about that baby" because it might grow up to win the Nobel prize.

The legislation was successfully challenged because the Oklahoma state constitution requires laws to address only one subject at a time. The ultrasound legislation also restricted use of the morning-after pill. The attorney general is appealing against the ruling. Lamb is also behind the latest law, which opponents are challenging on similar grounds. About 10% of pregnancies in Oklahoma end in induced abortions.

Scrutinizing trans bodies in Western Australia

by guest blogger Harper Jean Tobin

The Attorney General of the state of Western Australia is currently asking the supreme court of that state to revoke gender recognition certificates issued to two transgender men there. The two men both prevailed before a state administrative tribunal, which ruled last month that they had met all the criteria required by state law to obtain legal recognition of their gender transition. The Attorney General, however, argues that the state law cannot be interpreted to allow any person to legally change their gender if there remains any possibility of future fertility.

The two men brought unrelated petitions under the state’s Gender Reassignment Act, which allows transgender people to obtain a “gender recognition certificate,” and in turn (if they were born in that jurisdiction) an amended birth certificate. The petitioners, like others bringing petitions under the GRA and related legislation in other jurisdictions, need legal and administrative recognition of their transition order to work, travel, find housing, conduct financial transactions,  obtain public services, and otherwise carry on their day-to-day lives. In this case, both petitioners had received treatment under medical supervision over a number of years, including hormone therapy and surgical procedures. Both testified that they might ideally have wished to have additional surgical procedures, they did not plan to do so because of concerns including costs, medical risks, and limitations of current surgical techniques. Nevertheless, the conservative Attorney General intervened in the case, arguing that the men could not be legally recognized as men because it was not clear they were permanently sterile.

In the resulting hearing, both men were subjected to extensive medical testimony, in which several experts were pressed as to whether there existed some remote possibility that either of these men could become pregnant. When the experts testified that this was all but impossible given the men’s ongoing hormone treatment, they were asked repeatedly to speculate on whether a future cessation of hormone use – however unlikely that might be – could eventually result in regained fertility. Ultimately, however, the tribunal concluded that an individual’s right to social recognition of their gender should not depend upon such considerations, and granted the men’s applications.

The state attorney general immediately appealed. Explaining the decision to appeal, the AG said: “What this decision has said is that a person can be legally male and yet potentially bear children. This is a major decision which, if allowed to stand, could have significant and unforeseen effects on the laws of this State.” Tellingly, AG did not state what those “significant and unforeseen effects” might be, nor did he cite examples from other jurisdictions where present law is clearly consistent with the tribunals decision, such as Spain and the United Kingdom. Given the almost totally gender-neutral laws surrounding parentage and inheritance today, it is difficult to imagine what “significant and unforeseen effects on the laws” of Western Australia might be. Indeed, one strongly suspects that the AG is more concerned with perceived social effects of permitting individuals such control over their bodies and social identities than with any tangible legal effect.

                Aside from failing to articulate any actual reason for his legal position, the Western Australia attorney general’s position betrays an unseemly governmental interest in the private lives and reproductive choices of individuals. Assuming for the sake of discussion that society has some interest in ensuring that a gender transition is reasonably permanent before bestowing official recognition, it certainly has no such interest in preventing transgender individuals, or any individuals, from reproducing. While Australia has often been criticized for the absence of a right to privacy in its federal constitution, a legal requirement that a certain group of individuals be sterilized in order to obtain critical social benefits would seemingly violate that country’s international obligations under human rights treaties. While the two men in this case may not desire to make use of their own reproductive capacity, they clearly should not be required to undergo major surgery for the sole purpose of obliterating any such capacity.

                These bodily integrity and reproductive autonomy dimensions of gender recognition have seldom been recognized by courts. But the attorney general’s appeal in this case seems to present those questions squarely to the Western Australia Supreme Court. Hopefully the state’s high court will rise to the task.

Abortion and health reform - state of play

The following is a chart by Jessica Arons at the Center for American Progress, published at RH reality check, which updates my earlier post describing the Capps Amendment by adding a comparison to the Senate Finance Committee bill: 

Current law	Capps Amendment to House health care reform bill	Senate health care reform bill
The Hyde Amendment
The Hyde Amendment prohibits federal Medicaid and Medicare money from being spent on most types of abortion, including pregnancies that threaten the woman’s health or involve fetal anomalies. Federal money can only be used to pay for an abortion when the pregnancy threatens the life of the woman or results from rape or incest.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or by the government’s “public option.” In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only the private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or member-run co-ops. In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.
Other government programs
Laws similar to the Hyde Amendment that restrict coverage of abortion services also apply to military employees and their dependents, federal employee health plans, members of the Peace Corps, women in federal prisons and detention centers, and Native Americans who receive health care through the Indian Health Services.	Current restrictions on federal spending for abortion services would not change.	Current restrictions on federal spending for abortion services would not change.
States
States have the option to use their own money to pay for abortion services beyond what is permitted under the Hyde Amendment, and 17 states currently do so. Federal money subsidizes these state Medicaid programs even though they cover abortion.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.
Private insurance
Private insurance companies are allowed to decide whether to cover abortion services, and 87 percent of typical employment plans currently provide such coverage. The federal government subsidizes these plans through an employer tax credit, even if the plans include abortion.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.

Lambda settles Benitez case

Last year, Lambda Legal won a decision in the California Supreme Court that a private medical practice could not assert the religious beliefs of its doctor-owners as a defense to a claim that a lesbian had been denied services because of her sexual orientation. Yesterday, rather than take the case to trial, the defendants agreed to settle with the plaintiff, Guadalupe Benitez.  Mucho kudos to lead counsel Jenny Pizer.

From the San Diego Union Tribune:

A long-running lawsuit between an Oceanside lesbian couple and two doctors that pitted the civil rights of same-sex couples against religious freedom for physicians has been settled. The terms of the settlement were not disclosed. It ends a lawsuit filed in 2001 by Guadalupe Benitez against Drs. Douglas Fenton and Christine Brody at North Coast Women's Care in Vista.

Benitez alleged that the doctors told her they would not inseminate her because their religious convictions – they are Christians – prohibited them from doing the procedure for a lesbian couple. Benitez went to another doctor, got pregnant and had a child with her partner, Joanne Clark. The boy is now 7. The couple also have 4-year-old twins....

  ... [T]he doctors and the couple released a joint statement in which the doctors said they were sorry that Benitez and Clark felt they were being treated differently because of their sexual orientation. The doctors said they want “all of their patients, including those who are lesbian and gay, to feel welcome and accepted in their medical practice, and are committed to treating all of their patients with equal dignity and respect in the context of the highest quality of medical care.”

The doctors contended as the case went on that they declined to do the procedure because Benitez was unmarried – not because of her sexual orientation. But there was also evidence in the case early on that the doctors had acknowledged that they did not inseminate her because she is a lesbian....

“It was a really hard thing to go through, but it was worth it because we have hopefully paved the way for other people, and made sure that this is not going to happen to someone else,” [Benitez] said....

The state's civil rights law ... allow[s] doctors to opt out of some kinds of medical procedures, such as abortion. But if a physician does offer to do certain procedures, they must be made available to all, said Jennifer Pizer of Lambda Legal, an advocacy group for same-sex rights.

While the exact amount of the settlement is private, Pizer said it was enough so that the couple's children “will be able to have whatever type of education they want to have in the future.” ...

Abortion building as health reform issue

Among the many problems facing progressives who want to enact a universal access bill this year that will work (i.e. not just shovel more dollars to insurers and big pharma) is abortion, as I've noted before. The only body to have dealt head-on with this issue so far is the House Energy and Commerce Committee, which adopted basically  the same compromise position that was developed 16 years ago in the Clinton effort.

The committee position has several components.  With regard to access via plans offered in new insurance exchanges, the amendment says there would have to be at least one plan that covers abortion and one that doesn't in every part of the country. As far as public monies subsidizing abortion through supplements to allow low-income persons to purchase insurance, the amendment allows coverage of abortion, but the money would have to come from the portion of the premiums that are paid by the individuals. A sliver of those monthly premiums would be segregated and abortion services would be reimbursed from that separate account.The Hyde Amendment and any state law restrictions on access to abortion would remain in place. Lastly, what would the default position be?  Most of the current legislation punts to the Secretary of HHS the authority to promulgate regulations defining what will and will not be required of a basic benefits plan.

Will this compromise hold?  It's not a good sign when elements of the Roman Catholic hierarchy, a faith group that has fought for access to care for the poor for many years, are preaching that no reform is better than any plan that offers an abortion option. As the legislative process becomes more focused on specific language in the coming months, the pressure around this aspect of health reform will grow ever more intense.

Health reform hits abortion wall

With congressional committees having entered the phase of proposing specific legislative language for health reform, an old problem has resurfaced: health reform and abortion rights are on a collision course.  I refer to it as an old problem because it is one of the issues I dealt with when serving in the Clinton administration during the last effort to achieve universal coverage. We struggled then to devise mechanisms that would preserve choices for both sides. The threat to the overall reform effort never became visible, though, because reform crashed for other reasons before public attention focused on that level of detail.  The good news this year is that we seem to be far enough along that abortion has become a meaningful concern.

There are three contexts in which inclusion of abortion is relevant: the structure of a public option plan, the basic benefits package that all private group health insurance plans would have to include, and the use of public subsidies to defray premium costs for low-wage workers and others who need assistance. In each case, conservatives frame the question, as the NY Times article did this morning, as the use of public funds to finance programs that include access to abortion. 

That framing hides some harsh realities.  One is that if a basic benefits package barred coverage for abortion, women who now have coverage through their workplace (or other) health insurance would lose it. That would amount to a massive cutback in access to choice for tens of millions of women. Here's the way the issue should be framed, straight out of my notes from 1993:

• It is essential to maintain the existing coverage and access to services that women now have under private health insurance plans; and
• The basic benefit package design must include all pregnancy-related services that are medically necessary and/or appropriate.

You can expect that most reporting of this debate will treat it as one more example of how the crazy wild card issue of abortion screws up rational political deliberation.  It goes deeper than that, though. The abortion problem in health reform exemplifies the way that sexuality-related questions privatize our political discourse. And, like the Hyde Amendment with which it resonates, it's a morality debate that is likely to get resolved by a compromise deal cut on the backs of the poor - specifically, inscribed on the bodies of poor women. No public funds for abortion involves a tiny number of dollars (the 1993 estimate was that abortion services accounted for 0.3 per cent of the average insurance premium), but the amount looms large for the individual woman who needs it.

Obama promises "robust" conscience clause exemption for health care workers

Both the Washington Post and the Catholic News Service are reporting that President Obama assured a group of religion writers that he would insist on strong conscience clause exemptions for health care workers who object to certain medical procedures. Shortly before the end of the Bush administration, HHS issued new regulations that would prevent any HCW or hospital from being required to perform an abortion or other procedure to which they had a moral objection. The ACLU filed a lawsuit to stop the regulations from taking effect. Obama withdrew them, but is now promising that his administration's version will also be "robust," although only in the sense that it will be equivalent in strength to the status quo prior to the Bush regs. Especially given the attention being paid to religious exemptions in the same-sex marriage context, I think it's going to be important to watch how the new administration conceptualizes the trade-offs between rights in framing the terms of an exemption.

Here's the more detailed Catholic News Service report:

President Barack Obama told a round table of religion writers July 2 that he continues to be profoundly influenced by the late Cardinal Joseph Bernardin of Chicago, whom he came to know when he was a community organizer in a project partially funded by the Catholic Campaign for Human Development.

Obama said his encounters with the cardinal continue to influence him, particularly his "seamless garment" approach to a multitude of social justice issues. He also told the group of eight reporters to expect a conscience clause protection for health care workers currently under review by the administration that will be no less protective than what existed previously....

The president [said]  that he expects an ongoing review of conscience clause regulations will result in a continuation of protections that have long existed, allowing people who are morally opposed to abortion or contraceptives to decline to provide them in the line of work without repercussions.

Obama said in some ways he sees his first meeting with the pope as the same as any contact with a head of state, "but obviously this is more than just that. The Catholic Church has such a profound influence worldwide and in our country, and the Holy Father is a thought leader and opinion leader on so many wide-ranging issues. His religious influence is one that extends beyond the Catholic Church."...

On conscience clauses, the president said he has consistently believed in them. As a state legislator, he said, he supported "a robust conscience clause in Illinois for Catholic hospitals and health care providers." Soon after he took office as president, the administration reversed what Obama described as "eleventh-hour change(s) in conscience clause provisions that were pushed forward by the previous administration."

According to Obama, the Bush administration change, which took effect two days before the new president was sworn in, hadn't been "properly reviewed and thought through, and he added that there were some concerns about how broad it might be and what its manifestations would be once implemented."

In general, that change codified longtime federal statutes that prohibit discrimination against health professionals who decline to participate in abortions or other medical procedures because of religious or moral objections.

In his speech at Notre Dame, Obama called for a "sensible conscience clause." and said he wished to "honor the conscience of those who disagree with abortion."...

"We will be coming out with, I think, more specific guidelines," he said. "But I can assure all of your readers that when this review is complete there will be a robust conscience clause in place. It may not meet the criteria of every possible critic of our approach, but it certainly will not be weaker than what existed before the (Bush administration's) changes were made."...

Fourth Circuit abortion case in pipeline to Supreme Court

From SCOTUSblog; also, more background here -

Two years after the Supreme Court last ruled on abortion restrictions, a new test case is likely on its way to the Court, perhaps reaching there by next Fall.  Responding to an order by the Justices to take a new look at a Virginia abortion ban, the Fourth Circuit Court on Wednesday upheld the law.  The en banc Court divided, 6-5, in sustaining the law against claims that it would criminalize the most common method of abortions performed in the second trimester.

The case of Richmond Medical Center, et al., v. Herring (Circuit docket 03-1821) is developing as a sequel to the Justices’ 5-4 ruling in 2007 in Gonzales v. Carhart, upholding a federal ban on a procedure its critics call a “partial-birth abortion.”   The Fourth Circuit’s opinion, concurrence and dissent can be downloaded here.

Twice, a divided Fourth Circuit panel struck down the state law known as the “partial-birth infanticide” law, enacted six years ago in Virginia.  The law differs in some significant respects from the federal ban on “partial-birth” abortions that the Court upheld in the Carhart decision, and that difference was the key factor in both Circuit panel rulings.

The first of those panel decisions was set aside by the Supreme Court (docket 05-730) on April 23, 2007, for reconsideration in the wake of Carhart.  After the panel once more nullified the law, the en banc Circuit Court set that aside and reconsidered the law’s validity, leading to Wednesday’s ruling.  It rejected both a “facial” challenge — to the law as written, no matter in what situation it might be applied — and a challenge to its application to a Richmond doctor and his clinic.

While noting that the Supreme Court had increasingly frowned on “facial” challenges to legislation, the Circuit Court did not rule them out entirely when aimed at an abortion law, just as the Supreme Court has not forbidden such challenges.  But the Circuit Court said that, no matter what standard is applied, the Virginia law satisfied it.

While the panel had said that there was a serious risk that the Virginia law, in practice, could criminalize a doctor’s procedure that violated the law simply by an accident, the en banc majority said “there is little or no evidence” of that in this case, although conceding that it might happen rarely.

The Virginia law, it said, is “somewhat different” from the federal ban, but still “provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it.”

The most significant difference between the Virginia ban and the federal ban is that, under the Virginia law, a doctor who intends to perform an abortion that does not violate the law, but the fetus accidentally is delivered intact to a significant degree, and if the mother’s life is not at stake, the doctor has committed a crime.

The Circuit Court’s dissenters argued that the majority ruling “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstiutional burden on a woman’s right to choose…[The law] violates the Constitution because it exposes all doctors” who perform a standard abortion to prosecution, conviction, and punishment, because it punishes violations of the law by mere accident.

Abortion in 19th century New York

From the NY Times:

At first glance, the recent killing of the abortion provider Dr. George Tiller in Kansas appears to be a modern phenomenon, the heinous byproduct of the politics of the last several decades. In fact, Dr. Tiller is just the latest in a line of brave people who have died for providing abortions. Perhaps the most infamous of these was a midwife named Ann Lohman, who killed herself in New York in 1878 after decades of harassment.

Lohman, who called herself Madame Restell, was an immigrant from Gloucestershire, England, who started out selling “female pills” to “regulate” women. The medicines — mostly herbs, perhaps some opium — promised relief from an “obstructed womb” and “suppressed” menstruation. “Not to be used when *******,” declared one of the many coy ads she placed, “as miscarriage may occur.”

In the event that the pills did not, in fact, induce miscarriage, Lohman offered a procedure in her offices, charging $20 for poor women, and as much as $100 for her increasingly wealthy clientele. She also boarded pregnant ladies, delivered babies, placed infants for adoption and conducted sex education classes.

In partnership with her husband, Charles Lohman — also known as “Dr. Mauriceau,” to appeal to the Francophile vanities of the carriage trade — Madame Restell grew rich from her thriving mail-order business, and even had agents in Boston, Philadelphia and Providence, R.I. She drove her fine carriage through Central Park, creating a scandal. The press delighted in describing her wardrobe, her dresses of silk and velvet, her hat with its red feather, and her ostentatious five-story house, with its lush gardens and stables, its tessellated marble entry and grand fireplaces, which she had built in 1862 on Fifth Avenue and 52nd Street. The neighbors were said to ridicule her tacky window dressings.

Lohman’s wealth and unrepentant behavior made her a tabloid favorite. The New York Herald, The National Police Gazette and The Polyanthos called her a “hag of misery,” “a modern Thug of civilized society,” and the lady of “the death’s head and the marrow bones.” Abortion, with its drama of illicit sex and romance gone sour, was, and remains, a sensation that sells news.

It has also long inspired angry protests. In a riot organized in 1846 by the newspaper publisher George Dixon, a mob surrounded Lohman’s house and chanted, “Hanging’s too good for her!” and “This house is built on babies’ skulls.”

Zealous prosecutors pursued Lohman almost from the start, even though abortion laws were weak and violations difficult to prosecute, as witnesses were reluctant to come forward and early pregnancy could not be proved. Even so, from 1839 to 1877, Lohman was arrested at least five times and jailed for months without bail. She spent countless hours and dollars defending herself against charges and rumors (that there was a special sewer built between her house and the Hudson River, to dispose of corpses; that she was responsible for the unsolved murder of a cigar girl, a case that Edgar Allan Poe used as the basis for a story, “The Mystery of Marie Rogêt”).

She was convicted only once, however, and served a year in the penitentiary on Blackwell’s (now Roosevelt) Island on misdemeanor charges. It was widely believed that she escaped harsher punishment by threatening to reveal the names of her patients — the mistresses, daughters and wives of the rich and powerful.

Her published letters suggest that Lohman was passionately committed to the idea of providing reproductive health care to women. When the authorities moved to stop the publication of ads for her services — on the grounds that birth control and abortifacients corrupted women — Madame Restell wrote to The Herald: “Would your wives, and your sisters, and your daughters, if once absolved from fear, all become prostitutes? I cannot conceive how men who are husbands, brothers or fathers can give utterance to an idea so intrinsically base and infamous.”

Though abortion by the untrained — then and now — is a dangerous procedure, no woman was ever proved to have died at Lohman’s hands. Indeed, testimony in her trials suggested that Madame Restell was a professional who cared deeply for her patients, staying with them overnight and nursing them with kind words. One patient testified that Lohman “told me to take great care, as she should feel anxious until she saw or heard from me.”

But in the 1870s, Ann Lohman finally met her match in the religious crusader Anthony Comstock, who persuaded Congress to prohibit the sale or distribution of materials that could be used for contraception or abortion, or the sending of such materials by mail. As a special agent of the United States Post Office, Comstock entrapped Lohman by posing as a husband seeking abortion services for a lady. When she provided him with some tablets, he returned and arrested her — accompanied by two reporters. She faced years in jail.

Despondent, fearing the shame that would come upon her family during a long trial and convinced that another stint in prison would kill her, Lohman climbed into her marble bathtub on the April morning her trial was to start, and slit her own throat. She was 66.

“A bloody ending to a bloody life,” Comstock commented upon hearing of her death. The newspapers echoed his sentiments. “The end of sin is death,” wrote The New York Tribune, and The Times editorialized that Lohman’s death was “a fit ending to an odious career.”

Lohman’s death did not put an end to abortion, nor to the battle fought over it. The murder of Dr. George Tiller will not accomplish those ends either.