Aborting Health Care Reform

Dana Goldstein

The president and his staff have been reluctant to take on reproductive rights in health reform. But that has not prevented anti-choicers from using the issue to activate their base against reform.

This article was first published by The American Prospect.

In September 1993, as Hillary Clinton lobbied Congress to pass her
health-reform bill, she plainly addressed the looming controversy over
reproductive care. "It will include pregnancy-related services, and
that will include abortion, as insurance policies currently do," she
told the Senate Finance Committee. Conservatives were incensed. But as
the history books record, it was industry pressure and legislative
malaise that killed Hillarycare, not debate over women’s rights.

On the campaign trail, Barack Obama did not shy away from the issue
of abortion, pledging, "On this fundamental issue, I will not yield."
In the context of health reform, though, the president and his staff
have been reluctant to directly address reproductive rights. In a March
interview with the Christian Broadcasting Network’s David Brody, the
White House’s chief domestic policy adviser, Melody Barnes — who once
sat on the board of Planned Parenthood — claimed she had never spoken
to the president about whether abortion services should be covered
under a universal health-care system. "We haven’t proposed a specific
benefits package or a particular health-care proposal, so we’re going
to be engaging with Congress to have this conversation," she said. When
Office of Management and Budget Director Peter Orszag was asked by Fox
News in July whether the public insurance plan should cover abortion,
he was vague. "I’m not prepared to rule it out," he said. The president
finally addressed the issue himself in a July 21 interview with Katie
Couric, in which he bucked reproductive rights groups by saying he
would consider deferring to the "tradition" of "not financing abortions
as part of government-funded health care."

Perhaps in response to the failure of the Clintons’ highly detailed
plan, Obama’s strategy has been to leave the nuts and bolts of health
reform up to the legislative branch, saying only that the resulting
bill must fulfill three goals: lower costs, provide Americans with more
health choices, and assure quality. That lack of detail has shoved
Congress deep into the weeds. Predictably, the president’s vagueness
hasn’t prevented anti-choicers from seizing upon the possible inclusion
of reproductive-health services as a vehicle to activate their base
against reform. "A vote for this legislation, as drafted, is a vote for
tax-subsidized abortion on demand," wrote Douglas Johnson, the National
Right to Life Committee legislative director, in a letter to Congress.
That message penetrated. At a July 14 press conference, Rep. Joe Pitts,
a Republican from Pennsylvania, claimed health reform undermined
Americans’ "right to life. Let’s make it explicit that no American
should be forced to finance abortions." As the health-care debate
reached a fever pitch in the weeks before Congress’ summer recess, Fox
News featured daily segments on the threat of "subsidized abortion."

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Meanwhile, Obama declared in his July 18 radio address that he would
not sign any reform bill that did not include a public health-insurance
program. A public plan is central to progressives’ goals of lowering
costs by giving private insurers real, high-quality competition. A
government-funded insurance option might, eventually, serve as the
shell for a single-payer health-care system similar to those of Western
Europe. But if Congress acquiesces to abortion opponents and passes a
public plan that does not provide reproductive-health services
comparable to what Americans can purchase in the private market or
obtain through their employer, it will be a weaker plan with a smaller
constituency. After all, the typical woman spends five years of her
life pregnant, or trying to become so, but a full 30 years avoiding
pregnancy. Without good reproductive-health coverage and strong buy-in
from women — who use more health care than men — it is difficult to
see how a public plan would gain strength over time.

Contrary to conservative hand-wringing, reproductive rights have
been under constant assault in the health-reform debate. At stake is
not only whether a potential public plan covers contraception or
abortion but also whether existing private health insurers, 87 percent
of which currently offer some abortion access, will be able to continue
to do so once they are operating within the new health-insurance
exchanges. The exchanges will house both public and private plans after
reform and will be regulated by the federal government.

This increased government intervention in the health sector both
excites and terrifies advocates for better reproductive care. The
potential upside is that through a public plan, an expansion of
Medicaid, and more competition among private insurers, many more women
will be able to afford good reproductive health care. But the potential
downside is stark: A politicization of which reproductive-health
services insurers can cover, meaning that under anti-choice
administrations, abortion and even contraceptive limitations or bans
could become the norm.

For millions of American women, insurance-subsidized abortion is already off limits. After Roe v. Wade
legalized abortion in 1973, one of the religious right’s first
successes in limiting access to the procedure was the passage of the
Hyde Amendment. Since 1976, Hyde has banned Medicaid — the federal
health-insurance program for poor women and children — from paying for
abortions, except in the most extreme cases when a woman’s physical
health or life is in danger. Medicaid covers 7 million American women
of reproductive age, or 12 percent of women in that cohort. Federal
employees, members of the U.S. military, Peace Corps volunteers, and
prisoners are also barred from using their government health coverage
to access abortion.

During a July 14 interview on MSNBC, Sen. Chuck Grassley, the
ranking Republican on the Senate Finance Committee, contended that when
it comes to abortion and health reform, "what we’re trying to do is
maintain current policy." Yet because any potential public health plan
would be funded by the federal government, what anti-choicers would
really like to ensure is that Hyde would also apply to any new public
insurance programs.

That isn’t likely to sit well with the public. Though past polls
have shown Americans are resistant to the concept of "taxpayer-funded
abortions," the public seems to see health reform under a different
light. According to a poll by the Mellman Group on behalf of the
National Women’s Law Center, 71 percent of Americans support coverage
for reproductive health, including contraception, under a public plan.
Sixty-six percent support coverage for abortion in a public plan.

None of the health-reform proposals being considered by Congress
explicitly threaten Hyde or the other existing federal bans on abortion
funding. In fact, reproductive-health-care advocates reluctantly admit
that the repeal of Hyde, although a long-term priority, is not on their
current agenda. After all, some Democrats, including Vice President Joe
Biden, have a history of support for the ban. "Hyde is discriminatory
against poor women, and we’d like to see it overturned," says Adam
Sonfield, a senior policy associate at the Guttmacher Institute. "But
it does not seem to be a political priority right now."

To protect against disruptions in American women’s access to
reproductive medicine, advocacy groups are recommending that an
independent council of medical experts — not a political appointee —
define which services will be covered by insurance plans participating
in the exchanges. Such a commission would likely argue for the
inclusion of abortion and contraceptive services. Though politically
volatile, family planning is rather uncontroversial in the insurance
industry and among public-health experts. For every $1 spent on public
family-planning services, the government saves $4.02. The public sector
alone saves $4.3 billion in medical costs each year thanks to the
family-planning coverage the federal government already provides poor
women through Medicaid and Title X. That’s because birth control and
abortion are simply much less costly than pregnancy.

The final health-reform bill will likely establish a council of
experts to advise the health and human services secretary on what
benefits should be covered. But in both the House and Senate proposals,
the council’s power is limited; it is still the HHS secretary who makes
the final call. This means that under anti-choice administrations,
abortion and contraceptive access could be threatened within the
health-insurance exchanges. "The potential there is that many, many
women could lose the coverage they presently have," said NARAL
Pro-Choice America President Nancy Keenan in July, as hundreds of
Senate amendments were being filed on health reform, many of them
seeking to prevent abortion coverage.

Another risk is that even if abortion services are covered, health
clinics that provide abortion — such as the Planned Parenthood network
— could be barred from participating in the exchange, meaning they
would not be able to offer insured services to patients in either
public or private plans. An amendment to the Senate Health, Education,
Labor, and Pensions (HELP) bill from Barbara Mikulski, a Democrat from
Maryland, would protect the status of clinics, but it attracted
opposition even from some Democrats, such as Sen. Bob Casey of
Pennsylvania, who identifies as pro-life.

For many congressional Republicans — and some of the 19 moderate
House Democrats who joined their cause — fanning the flames of the
abortion debate is, at least in part, a tactic for delaying reform. To
be fair, some family planning opponents do support the broader goal of
universal health care — the Catholic Church chief among them. But
according to Marilyn Keefe, director of reproductive-health programs at
the National Partnership for Women and Families, "The pressure [on
reproductive rights] largely comes from people who don’t support the
larger health-reform effort."

Advocates were able to ensure that both the House tri-committee
bill and the Senate HELP bill made it through committee without any
amendments limiting access to reproductive care. But as Tina Tchen,
director of the White House Office of Public Engagement, told a July 15
Planned Parenthood conference — perhaps in an effort to tamp down
expectations — "That was not easy. It was not easy in committee. It
won’t be easy to hold on the House floor. It won’t be easy to hold on
the Senate floor."

Women’s organizations find themselves in the strange position of
playing defense, even as a pro-choice president sits in the White House
and both houses of Congress have pro-choice majorities. "Depending on
some of the things that are being proposed, we could be worse off"
after health reform than before it, Planned Parenthood President Cecile
Richards said at the conference. "That is untenable. Those are some of
the tough conversations we’re having, frankly, with the White House and
Congress. We can’t be worse off."

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

News Abortion

Texas Pro-Choice Advocates Push Back Against State’s Anti-Choice Pamphlet

Teddy Wilson

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated since 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature.

Reproductive rights advocates are calling for changes to information forced on pregnant people seeking abortion services, thanks to a Texas mandate.

Texas lawmakers passed the Texas Woman’s Right to Know Act in 2003, which requires abortion providers to inform pregnant people of the medical risks associated with abortion care, as well as the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term.

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated or revised since it was first made public in 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature. 

The Texas Department of State Health Services (DSHS) in June published a revised draft version of the pamphlet. The draft version of “A Woman’s Right to Know” was published online, and proposed revisions are available for public comment until Friday.

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John Seago, spokesperson for the anti-choice Texas Right to Life, told KUT that the pamphlet was created so pregnant people have accurate information before they consent to receiving abortion care.

“This is a booklet that’s not going to be put in the hands of experts, it’s not going to be put in the hands of OB-GYNs or scientists–it’s going to be put in the hands of women who will range in education, will range in background, and we want this booklet to be user-friendly enough that anyone can read this booklet and be informed,” he said.

Reproductive rights advocates charge that the information in the pamphlet presented an anti-abortion bias and includes factually incorrect information.

More than 34 percent of the information found in the previous version of the state’s “A Woman’s Right to Know” pamphlet was medically inaccurate, according to a study by a Rutgers University research team.

State lawmakers and activists held a press conference Wednesday outside the DSHS offices in Austin and delivered nearly 5,000 Texans’ comments to the agency.  

Kryston Skinner, an organizer with the Texas Equal Access Fund, spoke during the press conference about her experience having an abortion in Texas, and how the state-mandated pamphlet made her feel stigmatized.

Skinner told Rewire that the pamphlet “causes fear” in pregnant people who are unaware that the pamphlet is rife with misinformation. “It’s obviously a deterrent,” Skinner said. “There is no other reason for the state to force a medical professional to provide misinformation to their patients.”

State Rep. Donna Howard (D-Austin) said in a statement that the pamphlet is the “latest shameful example” of Texas lawmakers playing politics with reproductive health care. “As a former registered nurse, I find it outrageous that the state requires health professionals to provide misleading and coercive information to patients,” Howard said.

Howard, vice chair of the Texas House Women’s Health Caucus, vowed to propose legislation that would rid the booklet of its many inaccuracies if DSHS fails to take the thousands of comments into account, according to the Austin Chronicle

Lawmakers in several states have passed laws mandating that states provide written materials to pregnant people seeking abortion services. These so-called informed consent laws often require that the material include inaccurate or misleading information pushed by legislators and organizations that oppose legal abortion care. 

The American Congress of Obstetricians and Gynecologists (ACOG) sent a letter to DSHS that said the organization has “significant concerns with some of the material and how it is presented.”

Among the most controversial statements made in the pamphlet is the claim that “doctors and scientists are actively studying the complex biology of breast cancer to understand whether abortion may affect the risk of breast cancer.”

Texas Right to Life said in a statement that the organization wants the DSHS include “stronger language” about the supposed correlation between abortion and breast cancer. The organization wants the pamphlet to explicitly cite “the numerous studies that indicate undergoing an elective abortion contributes to the incidence of breast cancer in women.”

Rep. Sarah Davis (R-West University Place) said in a statement that the state should provide the “most accurate science available” to pregnant people seeking an abortion. “As a breast cancer survivor, I am disappointed that DSHS has published revisions to the ‘A Woman’s Right to Know’ booklet that remain scientifically and medically inaccurate,” Davis said.

The link between abortion and cancer has been repeatedly debunked by scientific research.

“Scientific research studies have not found a cause-and-effect relationship between abortion and breast cancer,” according to the American Cancer Society.

A report by the National Cancer Institute explains, “having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.”

DSHS spokesperson Carrie Williams told the Texas Tribune that the original booklet was written by a group of agency officials, legislators and public health and medical professionals.

“We carefully considered medical and scientific information when updating the draft booklet,” Williams said.