An Enormous Loss: Cynthia Dailard, Reproductive and Sexual Health Advocate, Dies

Marilyn Keefe

Marilyn Keefe is Interim President and CEO for the National Family Planning and Reproductive Health Association (NFPRHA).

Our very good friend and colleague, Cynthia Dailard, passed away on December 24 after suffering a cardiac arrest. Cynthia, a senior public policy associate at the Guttmacher Institute and a NFPRHA Board member, was a gifted thinker, writer, and speaker, whose highly regarded work focused on family planning-related issues in the policy and legislative arenas. Her contributions have been essential to advocacy and education efforts both in D.C. and across the country. The entire sexual and reproductive health and rights community mourns her loss less, both for her invaluable professional contributions to the field and for her years of unflagging good will and friendship.

Marilyn Keefe is Interim President and CEO for the National Family Planning and Reproductive Health Association (NFPRHA).

Our very good friend and colleague, Cynthia Dailard, passed away on December 24 after suffering a cardiac arrest. Cynthia, a senior public policy associate at the Guttmacher Institute and a NFPRHA Board member, was a gifted thinker, writer, and speaker, whose highly regarded work focused on family planning-related issues in the policy and legislative arenas. Her contributions have been essential to advocacy and education efforts both in D.C. and across the country. The entire sexual and reproductive health and rights community mourns her loss less, both for her invaluable professional contributions to the field and for her years of unflagging good will and friendship.

A memorial service to remember and celebrate Cynthia's life is scheduled for Saturday, January 6th, 2007. In addition, a friend of Cynthia's has set up a website in her honor to provide a comment section to give people a chance to share their thoughts and stories with Cynthia's family and friends.

In lieu of flowers, the family requests that donations be made to a memorial fund established in Cynthia's name at the Chevy Chase Bethesda Children's Center, where both her daughters, Miranda and Julia, attend preschool. The Cynthia Dailard Fund for the Enrichment of CCBC Children will be used for scholarships and enrichment programs for the school. If you would like to make a donation, checks can be made out to CCBC Children's Center (please note that your contribution is for the Cynthia Dailard Fund) and mailed to:

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CCBC Children's Center
c/o Lisa McAuliffe, Director
5671 Western Ave. NW
Washington, DC 20015

Analysis Law and Policy

State-Level Attacks on Sexual and Reproductive Health and Rights Continue, But There’s Also Some Good News

Rachel Benson Gold & Elizabeth Nash

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education.

State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).

This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)

Progress on Several Fronts 

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)

Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:

  • Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
  • Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
  • Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.

Ongoing Assault on Access to Sexual and Reproductive Health Services

Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.

  • Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
    • Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
    • Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
    • Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
  • Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
  • Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
    • Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)

Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.

  • Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
  • Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
  • Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Analysis Law and Policy

The Hyde Amendment and Beyond: The Conservative Attack on Reproductive Health Care That Just Won’t Quit

Jessica Mason Pieklo

Almost 40 years since the Hyde Amendment was first passed, another Supreme Court fight over reproductive health-care access and income inequality is shaping up.

This week marks the 39th anniversary of the Hyde Amendment, the federal appropriations ban on Medicaid reimbursement for most abortions. This summer will also mark the 35th anniversary of Harris v. McRae, the Supreme Court decision that ruled the Hyde Amendment’s restrictions constitutional, enshrining into law the idea that it is completely permissible for Congress to discriminate against poor people when it comes to reproductive health-care access.

The Hyde Amendment singles out low-income people for unequal treatment under the law. In order to come to the conclusion that it is constitutional, conservatives on the Supreme Court in 1980 advanced what has become a familiar mantra in opposition to reproductive rights: Just because a federal right to abortion exists doesn’t mean the government is obligated to pay for it. It’s a catchy quip, and one that persists today. But it is also an inherently dishonest way to think of how our fundamental rights work—one that depends on ignoring the realities of structural inequality.

“The Hyde Amendment,” wrote the Court in Harris v. McRae, “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.”

Under the Medicaid program, which currently provides coverage for approximately 60 million individuals, federal and state governments jointly pay for the health-care services of eligible low-income individuals and their families. Medicaid funding provides coverage for the “categorically needy” with respect to five general areas of medical treatment, including “skilled nursing facilities services, periodic screening and diagnosis of children, and family planning services.”

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In theory, that “family planning services” coverage should extend to abortion care. But it doesn’t, thanks to congressional Republicans. First passed in 1976—just three years after Roe v. Wade said the right to an abortion is fundamental—the Hyde Amendment, named after Rep. Henry Hyde (R-IL), places various limits on Medicaid funding for abortions. Currently, it only provides funding for abortions in cases of rape, incest, or life endangerment of the pregnant person. The Hyde Amendment is not permanent law. Rather, it is a funding limitation created by Congress, one legislators must renew every year.

Today approximately one in ten women are Medicaid enrollees, with women comprising more than two-thirds of adult rolls. According to a 2009 Kaiser Family Foundation report, Medicaid pays for more than four in ten births nationwide; in some states, it pays for more than half of the total births. With no Medicaid assistance for abortions, poor patients often have to reschedule appointments while they try and save money to pay for them, which pushes them into later, more expensive and potentially riskier abortions. Or worse, it forces them to carry to term pregnancies they otherwise would not.

Yet according to the Supreme Court in Harris v. McRae, the Hyde Amendment is not a government-created obstacle designed to limit access to the fundamental right to an abortion. It is rather just an exercise of state power, one that encourages childbirth over abortion.

No, I can’t explain the legal difference between those two positions, because there is none. Harris v. McRae is a case study in conservative morality policing, a truth borne out later in the opinion. Let’s walk through it.

“[A]lthough government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation,” the Court in Harris wrote. “Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”

In other words, it is not the Hyde Amendment preventing poor patients from accessing abortion care; it’s the fact that they are poor to begin with.

“Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer,” wrote the Harris Court. “[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

So. The Supreme Court in Harris v. McRae said that the congressionally created Hyde Amendment was not a government-created obstacle designed to limit poor patients’ reproductive health-care choices. Those choices, the Court reasoned, are already limited by the fact that the patient is poor and all the Hyde Amendment does is express the government’s general preference for childbirth over abortion. Somehow, it does not place another obstacle on the indigent person’s path to try and terminate a pregnancy.

OK then.

Almost 40 years and as many renewals of the Hyde Amendment later, conservative gamesplaying with Medicaid family provisions have only amplified. As their party heads to the 2016 presidential elections, Republicans are now calling for Benghazi-like investigations into Planned Parenthood and to exclude the reproductive health-care provider from the Medicaid program.

It’s important to note that conservatives in states like Indiana and Tennessee quietly widened Medicaid eligibility while continuing to pursue ways to strip comprehensive reproductive health-care services from its list of covered items. These states expanded their Medicaid programs because, frankly, they work. Medicaid as a venture of cooperative federalism has been a smashing success in reducing barriers to health care. Which is what makes the injustice of singling out abortion as the only medical procedure excluded for Medicaid funding all the more apparent.

“When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly,” Justice William J. Brennan, Jr. wrote in his dissent in Harris.

And as we’ve seen in the last five years with the unprecedented explosion of reproductive rights restrictions at the state level, conservatives never planned to end their campaign with undoing abortion rights. Upending contraception access, a cornerstone of science- and evidence-based family planning services, is also part of the right’s political play—especially where low-income people are concerned.

HR 3495, which the House votes on this week, would allow states to exclude providers from Medicaid based on ideology like a moral or religious objection to contraception and abortion, or a declaration that a fertilized egg is a person. HR 3495 builds off conservatives’ win in Hobby Lobby, the case last summer that allowed for-profit secular employers to raise religious objections to providing employee health insurance plans that covered contraception as required under the Affordable Care Act. So those who “consciously object” to providers who perform abortions are perfectly poised for support among the conservatives on the Roberts Court—most notably Justice Kennedy, who has yet to vote to support reproductive rights since 1992’s Planned Parenthood v. Casey.

If enacted and supported, HR 3495 could mean the end of reproductive health care grounded in science. But only for poor women.

So far, thanks to the Roberts Court, conservatives have successfully rolled back insurance coverage for contraception under the Affordable Care Act. HR 3495, by granting states the power to discriminate against health-care providers based on ideology, could do to contraceptive services under Medicaid what Hobby Lobby did for contraception coverage in the private sector: subject the right to access it to conservative veto. And with the holding and reasoning from Harris to guide them, there’s every reason to think the Roberts Court would find that restriction constitutional.

In addition, it’s very likely the Roberts Court will hear an abortion case and a contraception case this term. These cases, to varying degrees, address issues of reproductive health-care access and income inequality. That means the themes of state power, individual rights, and just how far the government can go to obstruct a patient from terminating a pregnancy—or accessing reproductive health care generally—will again be at the forefront of our legal conversations. And it will happen against the backdrop of the 2016 presidential elections and the Planned Parenthood smear campaign. It’s hard to see these converging events as a good thing.

All this means we shouldn’t just be outraged at the injustice of the Hyde Amendment on its anniversary; we should be scared of what follows.

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