Reflections on a Decade of Reproductive Freedom

ACLU

This week, we mark the 37th anniversary of Roe v. Wade, the landmark Supreme Court decision that significantly expanded the ability of women across the country to decide whether and when to become a parent.

By Louise Melling, Director, ACLU Reproductive Freedom Project

This week, we mark the 37th anniversary of Roe v. Wade, the landmark Supreme Court decision that significantly expanded the ability of women across the country to decide whether and when to become a parent. We also stand at the beginning of a new decade and at a moment that calls for reflection.

That said, it is hard to characterize the last decade for reproductive freedom. As I look back on the past 10 years, I see some real progress and glimmers of hope, but I also see disheartening setbacks and tragic losses.

Below is a brief account of some of the significant moments in reproductive freedom in the decade.

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Progress and Hope

1. President Obama lifts the “Global Gag Rule” and the long-standing ban on abortion coverage for low-income women in the District of Columbia.
In one of his first days in office, President Obama rescinded the “Global Gag Rule,” a federal policy that cut off crucial federal funding for family planning services overseas to any foreign nongovernmental organization that used its own money to advocate for safe and legal abortion care, to perform legal abortions in their own countries, or to counsel and refer women for abortions. Without this prohibition, the U.S. can restore its place as a global leader in support of women’s health and lives.

In 2009, Congress passed and President Obama signed into law a provision that lifted the long-standing ban that prohibited the District of Columbia from using its own tax dollars to cover abortions for low-income women who live in the district. This is an important first step toward ensuring access for all women. Other federal bans on abortion coverage remain and need to be lifted, including severe restrictions on coverage for low-income women on Medicaid, Native Americans, federal employees and their dependents, Peace Corps volunteers, federal prisoners, military personnel and their dependents, and disabled women who rely on Medicare.

2. Federal funding of ineffective abstinence-only-until-marriage programming ends.
After years of advocacy by the reproductive rights community, in 2009, the federal government defunded abstinence-only-until-marriage programming. Starting in 1996, our federal government poured more than $1.3 billion into abstinence-only programs that censor vital health care information, provide inaccurate information, promote gender stereotypes, discriminate against lesbian and gay students, and in some cases impermissibly use taxpayer dollars to advance one religious perspective. Research increasingly shows that these programs are ineffective and that young people need quality sexuality education to help them make healthy decisions.

The federal budget for the 2010 fiscal year not only defunds abstinence-only programming but directs significant resources into medically accurate, evidence-based teen pregnancy prevention programs. These changes represent a significant change in the nation’s sexuality education policy, signaling a new commitment to improving young people’s lives.

3. Voters defeat anti-choice measures at the ballot box.
Voters in South Dakota, Colorado, and California stopped ballot initiatives that would have seriously threatened the ability of women and families to make private health care decisions. Notably, South Dakotans defeated a ban on nearly all abortions in that state not once, but twice; Californians stopped measures three times that would have severely restricted teenagers’ access to abortion care; and 73 percent of Coloradans said "no" to an amendment that would have not only prohibited abortions, but could have blocked stem cell research and curtailed access to in vitro fertilization and certain forms of contraception, among other reproductive health services. While these were important, and in some cases decisive victories for reproductive freedom, they have not deterred anti-choice advocates from working to get similar measures on upcoming ballots throughout the country.

4. The Food and Drug Administration approves the early abortion pill.
The decade began with the Food and Drug Administration (FDA) approving for use in the United States the early-abortion pill (also known as mifepristone or RU-486). The abortion pill is a safe and effective method of ending a pregnancy without surgery. Since the FDA’s action, there has been a steady increase in the number of women choosing to have a medical abortion. However, the hope that this option would allow more medical professionals to become abortion providers and thereby give more women access to care has not materialized. The stigma and violence associated with providing abortion care, as well as the hyper-regulatory demands placed on abortion providers, have deterred more doctors from offering this service to their patients. In the coming decade, there is more work to be done to address these concerns.

5. Emergency contraception becomes available without a prescription.
In August 2006, the Food and Drug Administration authorized pharmacies to sell emergency contraception (EC) (also known as Plan B or the “morning-after pill”) without a prescription, but only to women 18 and older with government-issued proof of age. While these restrictions were arbitrary and unnecessarily limited access to this important contraception, the decision was nevertheless hard won by advocates: It followed a May 2004 decision that denied over-the-counter status to EC despite the near-unanimous recommendation of a panel of FDA advisors to allow the drug to be sold without a prescription.

More gains followed In March of 2009, a federal court ordered the FDA to reduce the age restriction to women 17 and older. In addition, the court called on the FDA to consider lifting the age restriction. As of this writing, we await further FDA action.

6. Historic demonstration for women’s lives takes place in Washington, DC.
On March 25, 2004, bus loads of people from all over the country attended the March for Women’s Lives on the National Mall in Washington, D.C. The crowd, which some estimates put at more than 1 million strong, called for an end to government attacks on women’s health and lives and an increase in policies that ensure access to the full range of reproductive health services, including contraception, prenatal care, abortions, treatment for sexually transmitted diseases, sexuality education, and other essential reproductive health services.

Setbacks and Losses

7. Dr. George Tiller, a trusted and compassionate abortion provider, is murdered in Kansas.
After what appeared to be a period of decreased violence against abortion providers and clinic staff, on May 31, 2009, Dr. George Tiller was gunned down in the vestibule of his church. Dr. Tiller was a true beacon of liberty. For decades, he provided compassionate care for women who came from all over the country to seek abortions at his clinic when they had few, if any other, options. Throughout his abortion practice, he faced relentless threats and harassment at his home, his place of worship, and at his clinic, including surviving a shooting in 1993. We continue to mourn Dr. Tiller’s loss and honor his years of service.

8. Congress puts politics above women’s health care needs in health care reform.
As the decade ended, we watched Congress take on the important task of addressing an urgent need within the country for improved access to health care. Unfortunately, along with the promise of health care reform came an attack on access to abortion. Both the House of Representatives and the Senate passed health care reform measures that would severely undermine women’s access to abortion care. Women stand to lose if the abortion provisions in either bill are included in final health care reform. As of this writing, debate and negotiations over health care reform continue. Tell lawmakers that abortion is part of basic health care for women and should be covered under health care reform.

9. The U.S. Supreme Court upholds a federal abortion procedure ban.
On April 18, 2007, the U.S. Supreme Court dealt a devastating blow to women’s health and reproductive rights. In a 5-4 decision that puts politics before women’s health, the Court upheld the first-ever federal ban on abortion methods – called by its sponsors the “Partial-Birth Abortion Ban Act of 2003.” In upholding the ban, the Court undermined a core principle of Roe v. Wade – that women’s health must remain paramount.

In an impassioned dissent, Justice Ginsburg attacked the majority for placing women’s health in danger and for undermining women’s struggle for equality. She wrote, women’s “ability to realize their full potential . . . is intimately connected to ‘their ability to control their reproductive lives.’”

10. State lawmakers propose more than 5,000 anti-choice measures over the course of the last decade.
The struggle to protect reproductive freedom has long been waged in state legislatures. For years, anti-choice lawmakers have been chipping away at the right to abortion by imposing more and more restrictions on a woman’s ability to obtain care. In the last decade, state lawmakers introduced more than 5,000 anti-choice measures, including attempts to ban abortion and interfere with women’s decision-making and the ability of doctors to provide care. Since 2000, 391 of these measures became law, including an Oklahoma law that became the first-in-the-nation law that forces health care providers to perform an ultrasound before a woman has an abortion regardless of medical necessity or benefit, and requires the woman to listen to a description of the fetal image against her will. (The law is currently being challenged in court.)

Looking Ahead to the World We Want
There is still much work to be done to create a world that respects everyone’s right to form intimate relationships, to enjoy a private sexual life, and to decide whether and when to have children. These are the three cornerstones of reproductive freedom that we must continue to shore up as we look ahead toward a new decade. Progress will not be made, however, unless we can de-escalate the rhetoric that surrounds abortion, and until we can move to a common understanding that abortion, like birth control and prenatal care, is part of basic health care for women. Deciding whether and when to have children is one of the most private decisions a person can make. Our policies should reflect this fact, and ensure that every woman can make the best decision for herself and her family.

News Law and Policy

Texas District Attorney Drops Felony Charges Against David Daleiden and Sandra Merritt

Jessica Mason Pieklo

The grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver's license to gain access to a Planned Parenthood center in Houston.

UPDATE, July 26, 2:47 p.m.: This piece has been updated to include a statement from Planned Parenthood.

On Tuesday, the Harris County District Attorney’s office in Texas dismissed the remaining criminal charges against anti-choice activists David Daleiden and Sandra Merritt related to their production of widely discredited, heavily edited videos alleging Planned Parenthood was illegally profiting from fetal tissue donations.

The criminal charges against the pair originally stemmed from Republican Texas lawmakers’ responses to the videos’ release. Attorney General Ken Paxton, Gov. Greg Abbott, and Lt. Gov. Dan Patrick all called for the Harris County District attorney’s Office to begin a criminal investigation into Planned Parenthood Gulf Coast last August, after the release of one video that featured clinic staff in Houston talking about the methods and costs of preserving fetal tissue for life-saving scientific research.

A Texas grand jury found no evidence of wrongdoing by Planned Parenthood staff and declined to bring any criminal charges against the health-care provider. More than a dozen state and federal investigations have similarly turned up no evidence of lawbreaking by the reproductive health-care provider.

Instead, in January, the grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver’s license to gain access to a Planned Parenthood center in Houston. Daleiden was also indicted on a misdemeanor charge related to trying to entice a third party to unlawfully purchase human organs.

A Texas judge in June dismissed the misdemeanor charge against Daleiden on procedural grounds.

“This meritless and retaliatory prosecution should never have been brought,” said Daleiden’s attorney, Peter Breen of the Thomas More Society, in a statement following the announcement that the district attorneys office was dismissing the indictment. “Planned Parenthood did wrong here, not David Daleiden.”

“Planned Parenthood provides high-quality, compassionate health care and has been cleared of any wrongdoing time and again. [Daleiden] and other anti-abortion extremists, on the other hand, spent three years creating a fake company, creating fake identities, and lying. When they couldn’t find any improper or illegal activity, they made it up. They spread malicious lies about Planned Parenthood in order to advance their anti-abortion agenda. The decision to drop the prosecution on a technicality does not negate the fact that the only people who engaged in wrongdoing are the extremists behind this fraud,” Melaney A. Linton, President and CEO of Planned Parenthood Gulf Coast, said in a statement emailed to In a statement emailed to Rewire after publication.

The district attorney’s dismissal of the felony charges against Daleiden and Merritt happened just before a scheduled court hearing requested by their attorneys to argue the felony indictment should be dismissed.

Daleiden still faces three civil lawsuits elsewhere in the country related to the creation and release of the Planned Parenthood videos.

Culture & Conversation Maternity and Birthing

On ‘Commonsense Childbirth’: A Q&A With Midwife Jennie Joseph

Elizabeth Dawes Gay

Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

Jennie Joseph’s philosophy is simple: Treat patients like the people they are. The British native has found this goes a long way when it comes to her midwifery practice and the health of Black mothers and babies.

In the United States, Black women are disproportionately affected by poor maternal and infant health outcomes. Black women are more likely to experience maternal and infant death, pregnancy-related illness, premature birth, low birth weight, and stillbirth. Beyond the data, personal accounts of Black women’s birthing experiences detail discrimination, mistreatment, and violation of basic human rights. Media like the new film, The American Dream, share the maternity experiences of Black women in their own voices.

A new generation of activists, advocates, and concerned medical professionals have mobilized across the country to improve Black maternal and infant health, including through the birth justice and reproductive justice movements.

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Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

At her clinics, which are located in central Florida, a welcoming smile and a conversation mark the start of each patient visit. Having a dialogue with patients about their unique needs, desires, and circumstances is a practice Joseph said has contributed to her patients having “chunky,” healthy, full-term babies. Dialogue and care that centers the patient costs nothing, Joseph told Rewire in an interview earlier this summer.

Joseph also offers training to midwives, doulas, community health workers, and other professionals in culturally competent, patient-centered care through her Commonsense Childbirth School of Midwifery, which launched in 2009. And in 2015, Joseph launched the National Perinatal Task Force, a network of perinatal health-care and service providers who are committed to working in underserved communities in order to transform maternal health outcomes in the United States.

Rewire spoke with Joseph about her tireless work to improve maternal and perinatal health in the Black community.

Rewire: What motivates and drives you each day?

Jennie Joseph: I moved to the United States in 1989 [from the United Kingdom], and each year it becomes more and more apparent that to address the issues I care deeply about, I have to put action behind all the talk.

I’m particularly concerned about maternal and infant morbidity and mortality that plague communities of color and specifically African Americans. Most people don’t know that three to four times as many Black women die during pregnancy and childbirth in the United States than their white counterparts.

When I arrived in the United States, I had to start a home birth practice to be able to practice at all, and it was during that time that I realized very few people of color were accessing care that way. I learned about the disparities in maternal health around the same time, and I felt compelled to do something about it.

My motivation is based on the fact that what we do [at my clinic] works so well it’s almost unconscionable not to continue doing it. I feel driven and personally responsible because I’ve figured out that there are some very simple things that anyone can do to make an impact. It’s such a win-win. Everybody wins: patients, staff, communities, health-care agencies.

There are only a few of us attacking this aggressively, with few resources and without support. I’ve experienced so much frustration, anger, and resignation about the situation because I feel like this is not something that people in the field don’t know about. I know there have been some efforts, but with little results. There are simple and cost-effective things that can be done. Even small interventions can make such a tremendous a difference, and I don’t understand why we can’t have more support and more interest in moving the needle in a more effective way.

I give up sometimes. I get so frustrated. Emotions vie for time and energy, but those very same emotions force me to keep going. I feel a constant drive to be in action and to be practical in achieving and getting results.

Rewire: In your opinion, what are some barriers to progress on maternal health and how can they be overcome?

JJ: The solutions that have been generated are the same, year in and year out, but are not really solutions. [Health-care professionals and the industry] keep pushing money into a broken system, without recognizing where there are gaps and barriers, and we keep doing the same thing.

One solution that has not worked is the approach of hiring practitioners without a thought to whether the practitioner is really a match for the community that they are looking to serve. Additionally, there is the fact that the practitioner alone is not going to be able make much difference. There has to be a concerted effort to have the entire health-care team be willing to support the work. If the front desk and access points are not in tune with why we need to address this issue in a specific way, what happens typically is that people do not necessarily feel welcomed or supported or respected.

The world’s best practitioner could be sitting down the hall, but never actually see the patient because the patient leaves before they get assistance or before they even get to make an appointment. People get tired of being looked down upon, shamed, ignored, or perhaps not treated well. And people know which hospitals and practitioners provide competent care and which practices are culturally safe.

I would like to convince people to try something different, for real. One of those things is an open-door triage at all OB-GYN facilities, similar to an emergency room, so that all patients seeking maternity care are seen for a first visit no matter what.

Another thing would be for practitioners to provide patient-centered care for all patients regardless of their ability to pay.  You don’t have to have cultural competency training, you just have to listen and believe what the patients are telling you—period.

Practitioners also have a role in dismantling the institutionalized racism that is causing such harm. You don’t have to speak a specific language to be kind. You just have to think a little bit and put yourself in that person’s shoes. You have to understand she might be in fear for her baby’s health or her own health. You can smile. You can touch respectfully. You can make eye contact. You can find a real translator. You can do things if you choose to. Or you can stay in place in a system you know is broken, doing business as usual, and continue to feel bad doing the work you once loved.

Rewire: You emphasize patient-centered care. Why aren’t other providers doing the same, and how can they be convinced to provide this type of care?

JJ: I think that is the crux of the matter: the convincing part. One, it’s a shame that I have to go around convincing anyone about the benefits of patient-centered care. And two, the typical response from medical staff is “Yeah, but the cost. It’s expensive. The bureaucracy, the system …” There is no disagreement that this should be the gold standard of care but providers say their setup doesn’t allow for it or that it really wouldn’t work. Keep in mind that patient-centered care also means equitable care—the kind of care we all want for ourselves and our families.

One of the things we do at my practice (and that providers have the most resistance to) is that we see everyone for that initial visit. We’ve created a triage entry point to medical care but also to social support, financial triage, actual emotional support, and recognition and understanding for the patient that yes, you have a problem, but we are here to work with you to solve it.

All of those things get to happen because we offer the first visit, regardless of their ability to pay. In the absence of that opportunity, the barrier to quality care itself is so detrimental: It’s literally a matter of life and death.

Rewire: How do you cover the cost of the first visit if someone cannot pay?

JJ: If we have a grant, we use those funds to help us pay our overhead. If we don’t, we wait until we have the women on Medicaid and try to do back-billing on those visits. If the patient doesn’t have Medicaid, we use the funds we earn from delivering babies of mothers who do have insurance and can pay the full price.

Rewire: You’ve talked about ensuring that expecting mothers have accessible, patient-centered maternity care. How exactly are you working to achieve that?

JJ: I want to empower community-based perinatal health workers (such as nurse practitioners) who are interested in providing care to communities in need, and encourage them to become entrepreneurial. As long as people have the credentials or license to provide prenatal, post-partum, and women’s health care and are interested in independent practice, then my vision is that they build a private practice for themselves. Based on the concept that to get real change in maternal health outcomes in the United States, women need access to specific kinds of health care—not just any old health care, but the kind that is humane, patient-centered, woman-centered, family-centered, and culturally-safe, and where providers believe that the patients matter. That kind of care will transform outcomes instantly.

I coined the phrase “Easy Access Clinics” to describe retail women’s health clinics like a CVS MinuteClinic that serve as a first entry point to care in a community, rather than in a big health-care system. At the Orlando Easy Access Clinic, women receive their first appointment regardless of their ability to pay. People find out about us via word of mouth; they know what we do before they get here.

We are at the point where even the local government agencies send patients to us. They know that even while someone’s Medicaid application is in pending status, we will still see them and start their care, as well as help them access their Medicaid benefits as part of our commitment to their overall well-being.

Others are already replicating this model across the country and we are doing research as we go along. We have created a system that becomes sustainable because of the trust and loyalty of the patients and their willingness to support us in supporting them.

Photo Credit: Filmmaker Paolo Patruno

Joseph speaking with a family at her central Florida clinic. (Credit: Filmmaker Paolo Patruno)

RewireWhat are your thoughts on the decision in Florida not to expand Medicaid at this time?

JJ: I consider health care a human right. That’s what I know. That’s how I was trained. That’s what I lived all the years I was in Europe. And to be here and see this wanton disregard for health and humanity breaks my heart.

Not expanding Medicaid has such deep repercussions on patients and providers. We hold on by a very thin thread. We can’t get our claims paid. We have all kinds of hoops and confusion. There is a lack of interest and accountability from insurance payers, and we are struggling so badly. I also have a Change.org petition right now to ask for Medicaid coverage for pregnant women.

Health care is a human right: It can’t be anything else.

Rewire: You launched the National Perinatal Task Force in 2015. What do you hope to accomplish through that effort?

JJ: The main goal of the National Perinatal Task Force is to connect perinatal service providers, lift each other up, and establish community recognition of sites committed to a certain standard of care.

The facilities of task force members are identified as Perinatal Safe Spots. A Perinatal Safe Spot could be an educational or social site, a moms’ group, a breastfeeding circle, a local doula practice, or a community center. It could be anywhere, but it has got to be in a community with what I call a “materno-toxic” area—an area where you know without any doubt that mothers are in jeopardy. It is an area where social determinants of health are affecting mom’s and baby’s chances of being strong and whole and hearty. Therein, we need to put a safe spot right in the heart of that materno-toxic area so she has a better chance for survival.

The task force is a group of maternity service providers and concerned community members willing to be a safe spot for that area. Members also recognize each other across the nation; we support each other and learn from each others’ best practices.

People who are working in their communities to improve maternal and infant health come forward all the time as they are feeling alone, quietly doing the best they can for their community, with little or nothing. Don’t be discouraged. You can get a lot done with pure willpower and determination.

RewireDo you have funding to run the National Perinatal Task Force?

JJ: Not yet. We have got the task force up and running as best we can under my nonprofit Commonsense Childbirth. I have not asked for funding or donations because I wanted to see if I could get the task force off the ground first.

There are 30 Perinatal Safe Spots across the United States that are listed on the website currently. The current goal is to house and support the supporters, recognize those people working on the ground, and share information with the public. The next step will be to strengthen the task force and bring funding for stability and growth.

RewireYou’re featured in the new film The American Dream. How did that happen and what are you planning to do next?

JJ: The Italian filmmaker Paolo Patruno got on a plane on his own dime and brought his cameras to Florida. We were planning to talk about Black midwifery. Once we started filming, women were sharing so authentically that we said this is about women’s voices being heard. I would love to tease that dialogue forward and I am planning to go to four or five cities where I can show the film and host a town hall, gathering to capture what the community has to say about maternal health. I want to hear their voices. So far, the film has been screened publicly in Oakland and Kansas City, and the full documentary is already available on YouTube.

RewireThe Black Mamas Matter Toolkit was published this past June by the Center for Reproductive Rights to support human-rights based policy advocacy on maternal health. What about the toolkit or other resources do you find helpful for thinking about solutions to poor maternal health in the Black community?

JJ: The toolkit is the most succinct and comprehensive thing I’ve seen since I’ve been doing this work. It felt like, “At last!”

One of the most exciting things for me is that the toolkit seems to have covered every angle of this problem. It tells the truth about what’s happening for Black women and actually all women everywhere as far as maternity care is concerned.

There is a need for us to recognize how the system has taken agency and power away from women and placed it in the hands of large health systems where institutionalized racism is causing much harm. The toolkit, for the first time in my opinion, really addresses all of these ills and posits some very clear thoughts and solutions around them. I think it is going to go a long way to begin the change we need to see in maternal and child health in the United States.

RewireWhat do you count as one of your success stories?

JJ: One of my earlier patients was a single mom who had a lot going on and became pregnant by accident. She was very connected to us when she came to clinic. She became so empowered and wanted a home birth. But she was anemic at the end of her pregnancy and we recommended a hospital birth. She was empowered through the birth, breastfed her baby, and started a journey toward nursing. She is now about to get her master’s degree in nursing, and she wants to come back to work with me. She’s determined to come back and serve and give back. She’s not the only one. It happens over and over again.

This interview has been edited for length and clarity.