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70 posts categorized "Reproductive rights"

November 04, 2010

Tweeting your abortion

From Salon:

Women are taking to Twitter with a blunt statement of fact: "I had an abortion." In fact, so many are tweeting about their experience that the hashtag "#ihadanabortion" began trending on the site yesterday. It all started with a tweet from @IAmDrTiller: "Time for us to come out. Who's had an abortion? Show antis we're not intimidated by scare tactics. Use: #ihadanabortion." The responses came streaming in:

I've had an abortion. It was not an easy decision, but it was the best one for me. #ihadanabortion

Almost half my life ago, #ihadanabortion. I'm not sorry. I've never been sorry. I will never be sorry. Just very, very grateful.

1992, 1998. #ihadanabortion

Yep, #IHADANABORTION.. more than one, now that I am ready I am now 7 months pregnant w/ my 2nd body, my decision!

Those who are ANTI-choice shd B glad #ihadanabortion. I went on to finish college, support myself, marry ... have 2 honor students. Nice, huh?

#IHadAnAbortion @ 17 ... no one helped much; every1 tried to protect the dude's reputation. Yuk. Grateful I had the option. I vote #prochoice.

Others tweeted their support or said things along the lines of "I haven't had an abortion, but I would if I got pregnant." There are surprisingly few anti-choice tweets and, for the most part, the thread feels like a small, intimate conversation -- so much so that I feel trepidation writing about it. That's the whole point, though -- to take this private conversation public, to scrub the "a-word" of stigma and shame. This is part of a long tradition of feminist consciousness-raising, it's just that the medium has changed.

In the documentary "I Had an Abortion," third-wave feminist Jennifer Baumgardner interviewed 20 women, including Gloria Steinem, about their decision to terminate their pregnancies. She also made t-shirts bearing the film's title and, as I wrote about with mixed feelings a few years back, she later started selling "I was raped" tees. Just as always, not all feminists or pro-choicers agree with the concept. "Not sure what the #ihadanabortion hashtag is meant to accomplish," one woman tweeted. "Pro-choice is one thing but this just seems needlessly provocative." In response, someone wrote: "Why is saying #ihadanabortion 'provocative?' I had my wisdom teeth out. Is that needlessly provocative? Or 'i had a baby at 15?'No?"

It seems silly to argue over whether tweeting about your abortion is provocative; of course it is, and the point is to make it less so. The real question is whether or not the #ihadanabortion thread is an effective step in that direction. There is part of me that bristles at the idea of abortion or rape being reduced to an edgy t-shirt slogan or a trending Twitter hashtag -- because the complexity of women's varying experiences is lost. But, you know what? Political slogans are not about nuance.

September 28, 2010

Greenhouse and Siegel reflect on "Before Roe v. Wade"

Journalist Linda Greenhouse and law professor Reva Siegel recently published Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling.  Following are excerpts from an interviewer by Erin Miller of SCOTUSblog about what they learned in writing the book:

Q - Linda, as a journalist, you’ve been reporting on the legal battle over abortion for a long time.  Your book reprints an article you wrote on the subject for the New York Times in 1970.  How did your experience inform your writing of the book?

My early reporting experience gave me a passing acquaintance with some of the main players, but I can’t say that it really informed the writing of the book. Don’t forget, our book ends with Roe, which was decided on January 22, 1973. As a very young reporter in the early 1970s, I didn’t have the perspective to understand fully what I was witnessing, frankly, and many important events remained in my peripheral vision. I found the experience of reconstructing what was actually going on in those days rather humbling. I wish I had understood then what I know now!

Q - Reva, as a legal scholar, you’ve written extensively on abortion and the law.  How was your approach to the book different than Linda’s?

In writing about debates over abortion, race, and gun rights, I have been examining how social movement conflict can provoke and guide constitutional change.  I had written on the antiabortion movement after Roe, and feminist abortion rights claims before Roe, but in this work on “Roe’s Roots” I had only begun to explore the debate over decriminalization of abortion that feminists joined in the late 1960s. So it was fascinating to reconstruct how arguments for and against legalization of abortion evolved in the decade before the Court decided Roe.

Oddly enough, my recent work on gun rights proved important as well. Since writing on the Court’s changing interpretation of the Second Amendment, I have been interested in the ways that movements and political parties interact in shaping constitutional law.  When we noticed that Richard Nixon shifted position on abortion, we asked why, and uncovered evidence of the Republican Party’s earliest efforts to use abortion in the service of party realignment. In the years before Roe, Kevin Phillips and Pat Buchanan advised Republicans to appeal to abortion to court Catholics and social conservatives who had historically voted with the Democratic Party. A variety of documents in the book explore the roots of political polarization around abortion...

Q - After doing the research for your book, did your thinking about the Roe opinion, or the public debate after Roe, change?  If so, how?

One aspect of Roe that is rather frequently commented upon is the physician-centric nature of its argument. The opinion reads in some ways as if the case was about the rights of doctors rather than the rights of women. And neither does the Court really acknowledge the claims being made on behalf of the unborn. One might ask whether these arguments were simply not made to the Court, or whether the Justices were simply unable to hear them. In the book, we include excerpts from the merits briefs as well as the amicus briefs – and, clearly, it was all there.  In addition, we show that these feminist and right to life arguments were regularly asserted in the several years before the Court ruled.  . So the silences in Roe itself present something of a mystery. We suggest ways in which the Court’s silence might be understood as an effort to diffuse conflict—but in the end leave the question open, as an invitation to debate and further research.

Our book doesn’t really treat the evolution of the public debate after Roe, but some of the material we include certainly raises questions about the widely accepted “backlash” theory – that it was the Supreme Court that created today’s conflict over abortion.. With other historians, we show that courts are not required for conflict: a Catholic-led antiabortion movement energetically opposed decriminalization before Roe. We go on to identify another institutional basis for political polarization around abortion, offering evidence of abortion’s entanglement in party realignment in the period before Roe.  We show that before Roe, Republican strategists working toward Richard Nixon’s reelection in 1972 were pushing opposition to abortion as a way to pry Catholic voters away from their traditional home in the Democratic Party and to use the issue as an instrument of party realignment. Older readers might remember the “triple-A” label that the Republicans pinned on George McGovern, the Democratic nominee – for amnesty, acid, and abortion (although McGovern was actually no abortion-rights crusader.) In an afterword to the book, we draw on work that Reva along with Robert Post published in an article called “Roe Rage” [42 Harvard Civil Rights-Civil Liberties L. Rev. 409 (2007)] to show that, in the decade after Roe, appeals to abortion in the service of party realignment continued. In 1979, conservatives who supported Ronald Reagan’s election helped broker a new coalition of Protestants and Catholics to oppose abortion, in the name of family and faith. Our work points to crucial shifts in the shape of abortion conflict in the years before, and decade after, the Court’s decision.

The Supreme Court’s decision in Roe is commonly viewed as the cause of backlash. Our work identifies another institutional locus of conflict in party realignment—a form of conflict that does not require Supreme Court rulings and can play an important role in shaping their interpretation. Our research on the decade before Roe thus raises questions about the decades after: In what ways was Roe a cause and in what ways a symbol of political polarization?  . We explore the implications of our research for  “Roe-caused-backlash” claims in “Before (and After) Roe v. Wade,” forthcoming in the Yale Law Journal.

September 15, 2010

Abortion trends: more linked to poverty as states enact greater restrictions

Three recent reports read together drive home the point that abortion is becoming more and more a poverty issue, and choice advocates are at the same time losing ground in state legislatures around the country.

According to a Guttmacher Institute study, the concentration of abortion among poor women is not only intense, but also rising sharply. The relative abortion rate for poor women in 2008 (the most recent data available) was more than twice that for all women, and more than five times that for women at 200% or more of the federal poverty level. About 42% of women having abortions 2008 were poor, compared to 27% in 2000. By contrast, the rates for low-income (100-199% of FPL) and better off women (>200% of the FPL) decreased during that time. Among poor women, Black and Hispanic women were overrepresented.

On the legislative side, the Center for Reproductive Rights reports that "2010 has been one of the most challenging state legislative sessions for women's access to abortion in many years." Favorite anti-choice initiatives have included bans on insurance coverage for abortion and mandates that women seeking abortion must be exposed to ultrasound images of the fetus. Guttmacher also issued an analysis of state legislation as of midyear 2010, and reported that there are 49 new restrictive state laws.

Add to this the current frenzy about "anchor babies" in the Latino community. As ColorLines notes, there is a long disturbing history of paranoid delusions about allegedly excessive fertility (read sexuality) in people of color communities. University of Arizona Women's Studies Professor Nicole Guidotti-Hernández places the "anchor babies" issue as the latest episode in that history:

These ideas about Latina women’s bodies and hyper-reproduction are not new... [Such fears have been] localized in the figure of what [historian Ellen] Gutíerrez has called “the hyper-fertile baby machine.”

Beneath all this is an undercurrent of legal and political dehumanization of women of color. And one historically effective strategy for diminishing a liberty right for everyone is just that kind of racialization. If the Supreme Court continues to chip away at the woman's right, this will be part of the context and part of a new enabling discourse -- that "good" (white, middle class) women are less concerned now about abortion.

August 29, 2010

VA Attorney General encourages legislature to harass abortion providers

Virginia state Attorney General Ken Cuccinelli has issued an official Attorney General's Opinion advising state legislators that they can lawfully single out abortion clinics and force them to comply with the same standards that regulate hospitals. According to The Atlantic, abortion rights groups believe that these regulations would force the majority of the state's clinics out of business.

Cuccinelli's opinion suggests that anti-abortion policies could be adopted by the Board of Health, regulating clinics, or by the Board of Medicine, which supervises physicians. It is addressed to Robert G. Marshall, a member of the VA House of Delegates.

The background for this move is a national anti-abortion strategy to enact TRAP (Targeted Regulation of Abortion Providers) laws that are allowed under the Supreme Court's 1992 decision in Planned Parenthood v. Casey. That was the case in which the Court declined to reverse Roe v. Wade, but allowed the states greater leeway in saddling abortion providers with a variety of special procedures, including elaborate "informed consent" protocols, so long as the regulations did not place an "undue burden" on women's access to abortions. Lower courts have since upheld many TRAP laws. The Fourth Circuit, where Virginia is located, established one of the most deferential interpretations of the undue burden standard in upholding a South Carolina TRAP law in Greenville Women's Clinic v. Bryan, 222 F.3d 157 (4th Cir. 2000).

More from The Atlantic:

While he was a Virginia state senator, Cuccinelli pushed for the passage of stringent new regulation of abortion clinics. Tarina Keene, the executive director of NARAL Pro-Choice Virginia, explained that Cuccinelli's previous efforts were stymied by a slim Democratic majority in the state Senate that blocked his proposals from reaching the floor. ..

If the board were to follow Cuccinelli's advice, the state's 21 abortion clinics would have to undergo structural renovations and obtain staff members with new qualifications. The cost of these requirements would, Virginia abortion rights advocates estimate, put 17 of the state's 21 clinics out of business.

"We predict it's about $1.5 to $2 million per clinic in extra cost," Keene said. "It's just crazy. And the thing is, it's really just designed to shut these places down. It has nothing to do with medical care."
In March, Cuccinelli sent a letter instructing the state's universities that only the state legislature could adopt a binding anti-discrimination policy, so that university-level attempts to prohibit sexual orientation discrimination were not valid. Because it seemed to invite such discrimination, his opinion brought on a firestorm of criticism, including on campuses, forcing equally conservative VA Gov. Bob McDonnell to distance himself from it. Cuccinelli later posted an "explanation" on the AG office website.

Cuccinelli also filed one of the lawsuits challenging the constitutionality of the health reform law, and issued yet another AGO declaring that police officers could question anyone they stopped about their immigration status.  What a guy...

July 19, 2010

Administration extends reach of Stupak Amendment beyond what is necessary

Jessica Arons has the following post up at RH Reality Check, in which she argues that the terms of the Stupak amendment to the new health reform law do not require that it be applied to the new high risk pools being established by the states.  Nonetheless, the Obama administration is applying Stupak, and thereby diminishing access to abortion -

Women entering these [high risk pool] plans are, by definition, those who have experienced serious medical conditions—so serious that insurers are unwilling to sell them insurance.  In other words, those who get pregnant are already at a heightened risk for needing an abortion for health reasons when compared to the general population.

Pennsylvania–apparently unintentionally–walked into the abortion debate by approving a program that potentially covered abortion.  The plan said no “elective” abortions would be covered, but referenced a statute that does not define the term “elective” and allows an abortion if it is deemed “necessary” by a physician based on “all factors (physical, emotional, psychological, familial and the woman's age) relevant to the well-being of the woman.”  The only situation deemed categorically unnecessary by the statute is sex selection.

Rep. John Beohner and the National Right to Life Committee raised a stink, and the very next day, HHS Spokeswoman Jenny Backus had this to say:

As is the case with FEHB [federal employee health insurance] plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) [high risk pool] except in the cases of rape or incest, or where the life of the woman would be endangered.

Our policy is the same for both state and federally run PCIP programs. We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.

But here’s the catch, nothing in federal law actually restricts the use of federal or state money for abortion in PCIPs.

The language that was inserted by Sen. Ben Nelson into the Patient Protection and Affordable Care Act that prohibits federal money from being spent on abortion in circumstances beyond the Hyde Amendment exceptions of life, rape, and incest clearly applies only to plans operating in insurance exchanges.

Sec. 1303 of the PPACA says a state may elect to prohibit or allow “abortion coverage in qualified health plans offered through an Exchange” and that, subject to whether a state has made such an election, “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion] services.”  If a qualified plan decides to offer coverage of abortion beyond the Hyde exceptions, it must collect separate premiums from each enrollee to pay for abortion coverage and all other coverage, and it may not pay for abortions with federal tax credits or cost-sharing reductions that were allocated under the PPACA for the purpose of subsidizing premiums for plans offered in the exchanges.  There are no other restrictions on abortion funding contained in the PPACA.

Continue reading "Administration extends reach of Stupak Amendment beyond what is necessary" »

May 22, 2010

Oklahoma abortion wars continue with third veto

Oklahoma Governor Brad Henry vetoed a restrictive abortion bill for the third time this legislative session, at least temporarily stopping a new law that would require women obtaining an abortion to furnish lengthy information, including their reasons for wanting to end the pregnancy. Under HB 3284, the survey responses (without the women's names or addresses) must be posted on the state's website. The bill passed the legislature overwhelmingly, suggesting that an attempt to override the veto may be successful. If it is, a lawsuit is likely.

Lawmakers approved a similar measure last year, but an Oklahoma state court judge first granted a TRO against its enforcement and then found it unconstitutional because it violated the state’s single-subject rule. Another TRO obtained less than a month ago blocked a second Oklahoma anti-abortion law requiring that women be shown an ultra-sound image of the fetus. Both of those bills had also been vetoed by Governor Henry, but the vetoes were overridden.

From local news:

House Bill 3284, which is similar to an earlier measure that was ruled unconstitutional by the courts,...would have forced women, including rape and incest victims, to participate in an intimate and detailed questionnaire about their pregnancy and personal life in order to obtain an abortion, the governor said. The legislation also would have mandated that the questionnaire answers be posted on the Health Department’s website.

In his veto message, Henry said again he supported reasonable restrictions on abortion, but that HB 3284 had several flaws, including the lack of an exemption for rape and incest victims.

“By forcing rape and incest victims to submit to a personally invasive questionnaire and posting the answers on a state website, this legislation will only increase the trauma of an already traumatic event. Victims of such horrific acts should be treated with dignity and respect in such situations, as should all people,” Henry said....

The House of Representatives passed the measure 88-8. The Senate passed it 32-11. It will require a two-thirds vote of members in each chamber to override the governor’s veto. A veto override will require 68 votes in the House and 32 votes in the Senate.

May 07, 2010

Rhonda Copelon, 1944-2010

I'm writing from the Grand Canyon,  Images surrounded by the kind of visual majesty that offers perhaps the best antidote to sorrow. That's lucky for me, because I learned yesterday that Rhonda Copelon lost her fight against ovarian cancer, and felt like I had been kicked in the gut. Rhonda was a shero for who knows how many people, me among them.

I first met Rhonda when I was a baby lawyer and she was a star in the reproductive rights movement. She was a genuine trailblazer, winning employment cases for pregnant unmarried women and then concentrating on the rights of poor women to have access to abortion on the same terms and with the same dignity as other women. Rhonda was lead counsel in Harris v. McRae, 448 U.S. 297 (1980), winning in the lower courts but losing a 5-4 decision in the Supreme Court. That was a pivotal moment for women's rights, one that haunts us still, with the Hyde Amendment now accepted as the national consensus compromise on how the nation deals with the irresolvable conflict over abortion. Coming so close and falling short, caught in the rising right-wing backlash driving the Supreme Court in 1980, broke Rhonda's heart.

But she was nothing if not a fighter, and she fought and won many other battles. She turned much of her energy to international women's rights, especially after winning Filartiga v. Pena-Irala, 630 F.2d 836, in the Second Circuit, ironically on the same day that Harris v. McRae was decided.  Filartiga opened the federal courts to international human rights cases.  In 1983, she left the Center for Constitutional Rights and became a founding faculty member at CUNY Law School, where she later started the International Women's Human Rights Law Clinic. She became a leader in the campaign to have military rape of civilian women understood as a war crime. She was also a wise adviser to those of us working in lgbt rights.  Rhonda herself came out in the early 1980s. CCR recently announced the establishment of the Copelon Fund for Gender Justice.

One of the last times I saw Rhonda was an impromptu dinner we had after running into each other at BAM. She was as I will always remember her - smart, funny, engaged, probing, and full of life.

May 04, 2010

Enforcement of Oklahoma anti-abortion law suspended until July

Responding to a suit filed by the Center for Reproductive Rights, state court Judge Noma Gurich signed an order blocking enforcement of a new anti-abortion law after the state agreed to the delay in the law's taking effect.  A hearing is scheduled for July 19.

From AP:

Oklahoma's attorney general agreed Monday to temporarily block enforcement of a controversial new state law that requires pregnant women to get an ultrasound and hear a detailed description of the fetus before they get an abortion. The Center for Reproductive Rights was set to argue for a temporary restraining order Monday, but attorneys for both sides agreed to accept the order before the court hearing, Oklahoma County District Judge Noma Gurich said. She signed the order Monday afternoon....

Attorney General Drew Edmondson agreed to the order to give his office more time to retain Teresa Collett, a University of St. Thomas Law School professor who represented the state when a similar law passed in 2008 was challenged by the Center for Reproductive Rights. She also is the Republican nominee in Minnesota's 4th Congressional District election this fall.

A judge ruled last year that the 2008 law was unconstitutional because it violated requirements that legislative measures deal only with one subject - but did not rule on the validity of the ultrasound provisions. The new abortion law went into effect last week after lawmakers overrode Gov. Brad Henry's veto.

The New York-based abortion rights group has said the new law is among the strictest in the nation. The law requires doctors to use a vaginal probe, which provides a clearer picture of the fetus than a regular ultrasound, and to describe the fetus in detail, including its dimensions, whether arms, legs and internal organs are visible and whether there is cardiac activity. The law also requires doctors to turn a screen depicting the ultrasound images toward the woman so she can view them.

The Center for Reproductive Rights has said the law forces a woman to hear information that may not be relevant to her medical care and could interfere with the physician-patient relationship by compelling doctors to deliver unwanted speech.

Collett, a native of Norman, Okla., said Monday that nothing in Oklahoma's abortion statute is inconsistent with standard medical practice. "It would be remarkable if a women would undergo a medical procedure and a doctor would not have an obligation to describe the procedure and the results of that procedure to the patient," Collett said. She said state lawmakers required abortion providers to describe the ultrasound's images because of some doctors' "unusual failure" to pass along the information to pregnant women....

April 28, 2010

States add more anti-abortion laws

When I worked at the Reproductive Freedom Project at the ACLU, the end of spring each year was a special time.  It meant that the legislatures in many of the smaller states were ending their annual legislative session, which meant no more crazy restrictive new laws, at least for another year. That moment can't come fast enough this spring, since 2010 has seen a big jump in the number and the restrictive intensity of state laws limiting the rights of women to reproductive choice.

Nebraska has just enacted two new statutes in this vein; a new Arizona law prohibits coverage of abortions in that state's insurance exchange, and Tennessee has a similar bill awaiting the governor's signature; and now Oklahoma has raised the stakes with a law mandating that women must see a fetal ultrasound and listen to a detailed description of the fetus before going forward, as well as a law granting immunity to doctors who do not inform pregnant women of fetal birth defects. [The Center for Reproductive Rights filed suit in Oklahoma yesterday seeking a TRO to stop enforcement.] Are these laws a sign of new power for the anti-choice movement or is 2010 an outlier year, perhaps fueled by a conservative energy spike coming off health reform in general and the Stupak amendment in particular?

Interesting analysis from Politico:

...“On the one hand, [the new laws are] part of an onslaught of restrictions that we see constantly,” says Nancy Northrup, President of the Center for Reproductive Rights... “But, that being said, these are both going farther that what we’ve seen before.” This year alone, the Center has filed lawsuits against six abortion-related laws—two in Oklahoma, two in Alaska, and others in North Dakota and Arizona—a caseload that Northrup describes as “higher than we’ve seen since the late 1990s. It’s a total uptick.” They’re currently tracking about 500 state-level bills that would curtail abortion rights...

Fourteen states [other than Oklahoma] do require the provision of an ultrasound prior to abortion, but Oklahoma goes further by requiring both the description of the fetus and that the ultrasound monitor be in sight. Oklahoma’s more restrictive law passed despite objections from Gov. Brad Henry (D), who had previously vetoed the bill.

The Nebraska law bans abortion after 20 weeks gestation on the basis that the fetus could feel pain. When it takes effect in October, the new regulation will likely be challenged as unconstitutional, largely because it bans pre-viability abortions. Numerous Supreme Court cases, including Roe v. Wade, identify viability as the point at which states can ban abortion, with exceptions for the life or health of the mother. Prior to viability, however, states can regulate, but not ban, the procedure....

These anti-abortion victories are a marked shift from just two years ago, when all three of the 2008 abortion-related voter initiatives failed. One in Colorado—arguably the most far-reaching of the three, as it would have declared personhood as beginning at conception—lost by a 46-point margin. Moreover, Nebraska and Oklahoma’s new laws are significantly more restrictive than the abortion restrictions that usually pass through state legislatures, measures that require parental notification for minors or a daylong waiting period prior to abortion.

Continue reading "States add more anti-abortion laws" »

April 13, 2010

Nebraska requires doctors to screen women seeking abortion for mental illness

The Nebraska legislature apparently has taken to heart Justice Kennedy's spectacularly arrogant pronouncement in Gonzales v. Carhart that "[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice [to have an abortion]. Severe depression and loss of esteem can follow." 550 U.S. 124, 159 (2007) (emphasis added). Yesterday Nebraska lawmakers finalized a bill that will require doctors to screen women for possible mental and physical problems before performing abortions. Gov. Dave Heineman declared that he will sign the bill today, along with a second new abortion law that will ban all abortions after 20 weeks, based on the premise that fetuses feel pain.

Well, somebody in Nebraska needs screening for mental problems. Both of these laws, scheduled to take effect in October, should be found unconstitutional in the lawsuit that doubtless will be filed to challenge them. Meanwhile, this chart from Daily Kos says it all -


April 11, 2010

What hath Stupak wrought

A new Guttmacher Institute report describes how the Stupak amendment will effectively deny insurance coverage for abortion to women who will be purchasing policies in the new exchanges:

Consumers purchasing exchange plans that include abortion coverage would have to make two separate premium payments—one to cover abortion services and one to cover everything else. Insurance companies would have to jump through numerous, unprecedented hoops to estimate the cost of abortion coverage and ensure that the abortion payments never mix with other funds; they also are likely to face extensive public scrutiny and protest around their action.

The inevitable result: insurers plan not to include abortion rather than undergo the hassle of administering separate premiums.  And the obvious next step is that those abortion-excluding plans will become the norm for policies sold outside the exchanges as well.

Not scary enough for you? The WSJ reports that choice opponents are trying to enact bans on insurance coverage in all plans now, before the exchanges come online in 2014:

Lawmakers in least six states are pushing for legislation to block abortion coverage in some health plans... [They] are turning to another provision in the legislation that says states can choose to prevent plans offered through their exchanges from covering abortion altogether. That would likely affect most individual and small-group plans in a state, starting when the exchanges launch in 2014...The new state-level proposals are likely to rekindle abortion as a political issue in November elections... Since the beginning of this year, lawmakers in five states including Tennessee and Oklahoma have introduced bills that would generally block abortion coverage in exchange plans...

In other words, unless a future Congress considers this to be one of those necessary "fixes" to the health reform bill, a massive cutback in reproductive rights is on the way -

December 07, 2009

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...

November 14, 2009

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.

November 10, 2009

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 herehere, 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.

November 05, 2009

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.”