Friday, August 14, 2009

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Commentary Abortion

The Helms and Hyde Amendments: More Than 40 Years of Human Rights Violations

Jamila Taylor & Yamani Hernandez

It’s time for U.S. advocates who condemn other governments that force women and girls to carry pregnancies to term to look at our own sexual and reproductive health policies, starting with the Helms Amendment, a funding restriction that turned 42 on Thursday.

Earlier this year, a sexual assault case involving a child in Paraguay sparked international outrage.

The 10-year-old child’s stepfather allegedly raped and impregnated her, and government officials denied her mother’s request for an abortion. Abortion is legal in Paraguay in cases where the life of the pregnant woman is threatened, but Public Health Ministry officials stated there was “no reason to interrupt the pregnancy,” unless she developed life-threatening complications. Instead, they argued that it would be “even more dangerous for the girl to undergo [an abortion] procedure.” Despite the clear health risks a pregnancy posed on the young child because of her age and the alleged rape incident, the now-11-year-old gave birth in August by cesarean section, as her doctors judged a natural birth to be too dangerous.

Following the incident, human rights groups in the United States and abroad condemned the government and the anti-abortion law that forced the young girl to carry to full term. Amnesty International said in a statement she was “lucky to be alive” due to the risks associated with her pregnancy, the Guardian reported.

It’s easy to point the finger at extreme cases of human rights violations from overseas. We like to think of the United States as a country where human rights are protected, and that something like what happened in Paraguay could never happen here. But it’s time for advocates here who condemned the Paraguayan government to look at our own sexual and reproductive health policies, starting with the Helms Amendment, which hinders a person’s ability to access abortion care in equally devastating ways.

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Abortion is extremely safe when it isn’t restricted. In fact, abortion carries a lower risk than childbirth. But restrictive laws create barriers to timely and compassionate abortion care, forcing people to seek unsafe abortions provided in unhygienic conditions and/or by untrained providers. Every year 21.6 million abortion procedures occur in unsafe conditions, and approximately 47,000 women die needlessly, almost all of them in developing countries, according to the World Health Organization.

The Helms Amendment—which congressional conservatives, including its namesake, the late Sen. Jesse Helms (R-NC), put in place 42 years ago today, December 17—restricts any national government or non-governmental organization (NGO) that receives U.S. foreign assistance from using those funds to provide abortion care, even if abortion is legal in their country. It is the predecessor to its domestic counterpart, the Hyde Amendment, which is almost 40 years old. Reproductive rights organizations and anti-choice activists alike view these amendments as policy constants—Hyde is annually renewed in our country’s spending bills, while Helms is a permanent statute in the U.S. Foreign Assistance Act—with little opportunity for change, despite repeated calls to eliminate the funding restrictions.

Under Helms, the restriction applies regardless of whether the U.S. funds are targeted for maternal health, family planning, or refugee assistance. Although the amendment clearly states that no U.S. foreign assistance money “may be used to pay for the performance of abortion as a method of family planning,” the U.S. government’s interpretation of the law is unduly strict and to date has not allowed exceptions for cases of rape, incest, or life endangerment.

At Ipas, a non-governmental organization that supports safe abortion access, we have seen the chilling effects of the Helms Amendment firsthand in countries where we work like Ethiopia, Nepal, and Ghana, where abortion is legal but confusion, misunderstanding, and inhibition around abortion care and information exist. In many U.S.-funded family planning and reproductive health programs, the unofficial policy is for doctors to avoid performing, offering referrals, or even, as reported by the Huffington Post, being “present while abortion [is] merely being discussed.”

On U.S. soil, the Hyde Amendment is also damaging and unjust. When abortion first became legal in 1973, virtually all women had access to abortion care. The Medicaid program, which covers health care for low-income people in the United States, covered abortion just as it did other medical procedures. But then, Rep. Henry Hyde (R-IL) authored the Hyde Amendment, passed by Congress in 1976, which banned Medicaid coverage of abortion for the sole purpose of preventing as many people from accessing abortion as possible. This budgetary amendment has affected not just those covered by Medicaid, but also people covered by federal and state health insurance plans, military personnel, Peace Corps volunteers, Indigenous people benefiting from the Indian Health Service, insured and uninsured immigrants, and even some private insurance plans.

We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment. Nonprofits like the National Network of Abortion Funds and its member organizations seek to fill the gap, but 60 percent of callers to abortion funds will not get the assistance they need due to funding shortages.

Anti-choice legislators who have made abortion expensive for low-income women are forcing them to carry their pregnancies to term. These human rights violations are creating an undue burden carried disproportionately by low-income women of color. No one should be denied care and forced to carry a pregnancy to term regardless of age, income, race, or nationality.

Governments and human rights advocates have long recognized the importance of accessible reproductive health care, including safe abortion services, to ensure maternal health and women’s human rights. At the UN 1994 International Conference on Population and Development, 179 governments, including the United States, affirmed that control of one’s fertility is a basic human right. This was reaffirmed at the 1995 Fourth World Conference on Women in Beijing. In 1999, the UN General Assembly agreed that “where abortion is not against the law, health systems should … ensure that such abortion is safe and accessible.”

United Nations committees charged with interpreting human rights treaties have found that the denial of abortion services in certain circumstances is a violation of women’s human rights, including their right to life; right to nondiscrimination; right to privacy; right to be free of cruel, inhuman or degrading treatment; and right to health. Similarly, in 2013, the UN passed two resolutions calling on member states to make certain humanitarian aid for survivors of rape include abortion. Governments around the world have liberalized access to abortion—including, just this month, Sierra Leone—recognizing that restrictive laws increase maternal death from unsafe abortion. By prohibiting domestic and foreign assistance for abortion, the U.S. government is contradicting its human rights commitments.

Millions of people, in the United States and around the world, receive funding from U.S. programs that improve maternal health conditions. Yet, the Helms and Hyde amendments undermine this important work, harming women, particularly low-income women and women of color, in the United States and in the Global South. The Helms Amendment is a dangerous and hypocritical law because the United States is the largest single donor for global family planning efforts and a supporter of international post-abortion care programs designed to treat complications from unsafe abortion.

Without a doubt, these are complex laws, and policymakers won’t dismantle them overnight. It helps when policymakers hear from the people they represent, and when organizations like Ipas and NNAF join forces to build a movement that can result in policy change. But there are steps that the Obama Administration can take immediately that would vastly improve the situation globally:

  • An immediate executive action to prevent misinterpretation of the Helms Amendment and allow for exceptions in cases of rape, incest, and where the pregnant woman’s life is endangered. Planned Parenthood and partners have organized this petition calling for an end to Helms.
  • Remove the Hyde Amendment from the fiscal year 2017 budget proposal. A coalition of reproductive and social justice organizations have created a petition urging President Obama to take this action, and it is now open for signatures.

Ultimately, in order for people around the world to realize full equality and reproductive freedom as our own human rights principles set out to do, these funding restrictions must be repealed. Everyone, regardless of their socioeconomic status or geography, deserves to be afforded the dignity to make personal decisions about pregnancy and childbearing and to access the reproductive health care necessary to make those decisions. For more than 40 years, U.S. policies have been allowed to violate the human rights of women at home and abroad. Isn’t it time the United States makes its abortion funding policies, both national and international, consistent with its other financial and political commitments to reproductive health?

Analysis Abortion

States Enact 51 Abortion Restrictions in First Half of 2015: Mid-Year Analysis

Elizabeth Nash & Rachel Benson Gold

Through the first six months of 2015, states enacted 51 new abortion restrictions; this brings the number of restrictions enacted since 2010 to 282.

Through the first six months of 2015, states enacted 51 new abortion restrictions; this brings the number of restrictions enacted since 2010 to 282. Although only about a dozen state legislations remained in session as of July 1, these states may well enact additional restrictions before the end of the year.

Following the recent pattern of increased restrictions in odd-numbered years (largely because not all legislatures are in session in even-numbered years), states have enacted more restrictions during the first half of this year than during all of last year (see chart). But nonetheless, the number of new restrictions this year is well below the 70 enacted in 2013, due in part to fewer restrictions being enacted in a handful of states—including Kansas, Oklahoma, and Arizona—that had adopted multiple restrictions between 2011 and 2014.

Abortion Restrictions

 

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Even as states continue to pass new abortion restrictions, the Supreme Court is poised to hear one, and maybe two, major abortion cases in the coming year. The Court might take a case challenging a 2013 Texas law that imposes targeted regulation of abortion providers (TRAP) requirements on abortion clinics in the state, including mandated admitting privileges for abortion providers at a local hospital. The U.S. Fifth Circuit Court of Appeals upheld a provision of the law in May. In June, the Supreme Court granted a request for an emergency stay, blocking enforcement of the provision. Abortion rights supporters are widely expected to file a full appeal to the Supreme Court in the coming months (see The State of Sexual and Reproductive Health and Rights in the State of Texas: A Cautionary Tale). In addition, the Court is weighing whether or not to hear a case in the fall centering on Mississippi’s law requiring abortion providers to have hospital admitting privileges.

Although states have adopted a wide range of restrictions so far this year, much of the attention has focused on four areas: waiting periods, abortions after the first trimester, medication abortion, and TRAP provisions. Even though most action on these issues follows recent trends, some states have charted new directions that may well serve as models for others going forward.

Waiting Periods

Three states moved this year to extend the length of their existing waiting periods, and two additional states adopted new waiting periods. Arkansas and Tennessee mandated a 48-hour wait between counseling and the abortion procedure. North Carolina and Oklahoma enacted measures requiring women to wait at least 72 hours, joining Missouri, South Dakota, and Utah, which also require women to wait at least three full days for an abortion (see Counseling and Waiting Periods for Abortion). A new Florida law, which would establish a 24-hour waiting period, has been challenged and it remains to be seen if enforcement of the law will be blocked during the court case.

Significantly, three of the five states—Arkansas, Tennessee, and Florida—to adopt waiting period requirements this year also require women to receive abortion counseling at the abortion facility, effectively necessitating two trips. Making multiple trips exacts a high toll on women, many of whom have to travel, often at considerable expense, to obtain the care they need (see A Surge of State Abortion Restrictions Puts Providers—and the Women They Serve—in the Crosshairs). Although Florida’s new “two-trip” requirement went into effect on July 1, opponents have asked that it be blocked as the legal proceedings continue; a decision on that request could happen at any time. All in all, 14 states require women to make two trips to obtain an abortion (see map).

 

Two Trips to Abortions

Abortions After the First Trimester

Since 2010, 14 states have adopted measures banning abortion at about 20 weeks post-fertilization (about 22 weeks after the woman’s last menstrual period) and 11 of these states have laws in effect. This includes a new law in West Virginia, which was enacted when the legislature overrode Democratic Gov. Earl Ray Tomblin’s veto (see State Policies on Later Abortions).

For the first time, two states, Kansas and Oklahoma, enacted measures that could ban abortion as early as 14 weeks of pregnancy. These new laws use nonmedical, vague, and inflammatory language to try to ban abortion procedures commonly used in the second trimester. The Kansas law was challenged in early June on the grounds that it violates the state’s constitution by infringing on a woman’s ability to access a safe abortion method and dictating medical practice; the law is not in effect pending resolution of the challenge. Similar measures are likely to be proposed in other states.

Medication Abortion

Including three that enacted measures this year to limit access to medication abortion, 19 states now restrict this commonly used first-trimester abortion method (see Medication Abortion).

  • Banning telemedicine. Although telemedicine is increasingly used to expand access to health care in underserved areas, states have moved aggressively in recent years to ban its use for medication abortion. This year, Arkansas and Idaho adopted new restrictions, joining 16 other states in barring this use of telemedicine. In mid-June, the Iowa State Supreme Court struck down a regulation banning the use of telemedicine for medication abortion, saying that no evidence supported the imposition of such an undue burden on women; the regulation had not been in effect pending the court decision.
  • Requiring FDA protocol. Arkansas enacted a measure requiring use of the outdated protocol, approved in 2000, that appears on the FDA label for mifepristone. The newer evidence-based regimen uses less medication, involves fewer side effects and visits to the provider, and is less expensive; this new regimen is routinely used and is widely recognized as the standard of care for performing medication abortion. Including Arkansas, four states nonetheless require the use of the outdated FDA protocol.
  • Counseling on reversing medication abortion. Arizona and Arkansas adopted a new type of medication abortion restriction: Under these laws, abortion providers are required to inform women that it is possible to stop a medication abortion by giving the woman a large dose of hormones after the mifepristone has been administered, but before the woman takes the misoprostol. However, very little evidence indicates that this works to stop the abortion procedure or that it does not entail medical risks. The Arizona law has been challenged in federal court and is not being enforced.

Targeted Regulation of Abortion Providers (TRAP)

Four states enacted measures that impose restrictions on abortion providers beyond what is necessary to ensure patients’ safety. Typically, these laws take two approaches: establishing physical facility and staffing standards, and requiring abortion providers to have a formal relationship with a hospital (see TRAP Laws Gain Political Traction While Abortion Clinics—and the Women They Serve—Pay the Price). Including the new measures enacted this year, 25 states have some form of TRAP law (see Targeted Regulation of Abortion Providers).

  • Admitting privileges. Five states require providers of either medication or surgical abortion services to have admitting privileges at a local hospital. Another ten require the provider to have either admitting privileges or another type of relationship with a hospital (such as an agreement with a physician who has privileges). This year, Arkansas adopted a new restriction that requires only medication abortion providers to have an agreement with a physician who has admitting privileges; the law does not include a parallel requirement for surgical abortion providers. Arkansas is the only state to have such a requirement. Continuing its longstanding effort to require abortion providers to have a relationship with a hospital, the state adopted a new law that requires proof of such a relationship as a condition of obtaining a license to operate in the state.
  • Physical plant standards. Legislation adopted by Tennessee in May would require surgical abortion facilities to meet all the requirements for licensure as an ambulatory surgical center; implementation of the law is blocked pending resolution of a legal challenge. Twenty-two states impose standards on abortion providers that are comparable to those for ambulatory surgical centers.
  • Disposal of fetal remains. Arkansas and Indiana now require abortion providers to either incinerate or bury fetal remains.

Editor’s note: Gwen Rathbun and Yana Vierboom also contributed to this analysis.