Roundup: Stuck with Stupak, or Looking for Options?

Robin Marty

Stupak Stupak Stupak.  Frankly, I don't think I could be more tired of the word "Stupak."  But like a splinter you keep pushing in deeper with your tweezers while you're trying to get it out of your finger, there he is, still trying to hold healthcare hostage over his beliefs that women cannot be trusted with their own bodies.

Stupak Stupak Stupak.  Frankly, I don’t think I could be more tired of the word “Stupak.”  But like a splinter you keep pushing in deeper with your tweezers while you’re trying to get it out of your finger, there he is, still trying to hold healthcare hostage over his beliefs that women cannot be trusted with their own bodies.

Even his home town news outlets are shouting doom and gloom for reform because of him.

Rep. Bart Stupak has become the unofficial leader of a small but powerful bloc threatening to derail President Barack Obama’s health care overhaul.

A dozen socially conservative Democrats say they won’t support the legislation without a prohibition on paying for abortions with federal money. Stupak wrote a provision to their liking for a House bill approved last November, but the Senate replaced it with wording he considers unacceptable.

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Opposition from his faction could doom the measure and cripple Barack Obama’s presidency.

Stupak is trying to bring down reform because he thinks the Senate bill isn’t as “pro-life” as his House version. But as David Gibson points out, he’s totally wrong.

A close reading of the two bills, however, informed by analyses from a range of experts, reveals that the pro-life claims about the Senate bill and its abortion financing provisions are, in fact, mistaken. Indeed, the Senate bill is in some respects arguably stronger in barring abortion financing and in promoting abortion reduction.

does the Senate reform bill finance abortion insurance coverage? The answer is no, and it is there in the bill, on page 2072: “If a qualified plan provides [abortion] coverage…the issuer of the plan shall not use any amount attributable to [health reform’s government-funding mechanisms] for purposes of paying for such services.” As Slate’s Timothy Noah put it, “That seems pretty straightforward. No government funding for abortions.”

What concerns critics is the different ways the House and Senate bills go about barring taxpayer financing of abortion coverage.

Both bills would create health insurance exchanges, basically a new marketplace for small businesses and individuals to buy affordable coverage with government subsidies if necessary. But the House bill with the Stupak language stipulates that women who want abortion coverage and a government subsidized health plan must buy a separate rider for the abortion coverage. The Senate bill with the Nelson language says an insurance plan in the exchange can offer abortion coverage, but a woman who wants it must pay for that element of the coverage by a separate check that goes into a separate account.

As Jost writes: “Concern has been expressed that plans might use accounting practices that, despite this oversight, allow them to subsidize abortion coverage from federal funds, but if they want to do this for some reason, they could also do it under the House bill. Requiring a separate abortion policy rather than a separate premium is an administrative technicality. It merely requires one more piece of paper.”

(In every exchange there must always be at least one plan that does not offer abortion coverage so those with moral objections, or the vast majority of Americans who are not women of child-bearing age, do not have to pay for abortion coverage they won’t use, or to effectively subsidize someone else’s abortion coverage. Health care economists expect such abortion-free plans will predominate because they are the most attractive to most customers.)

Isn’t there a compulsory “abortion tax” in the Senate plan for all who get subsidized coverage in the exchanges? No — even though many critics, including Stupak himself, have alleged that there is such a mandatory fee. ABC’s Jonathan Karl recently debunked this claim, though it still makes the rounds. The reality is only those who elect to choose a policy that includes abortion would have to pay the separate fee, and that is designed to keep federal dollars from potentially paying for abortions.

Other frequently heard objections to the Senate bill are that it does not preserve conscience protections for individuals or health care institutions (such as Catholic hospitals) that oppose providing abortions, but even the Catholic bishops acknowledge that charge is not true and those protections are the same as they always have been, and are equal in both the House and Senate versions.

In addition, the Senate bill includes a number of provisions pleasing to pro-lifers that the House bill does not.

For example, it includes key elements of the Pregnant Women’s Support Act that have long been sought by abortion foes: One is to appropriate $250 million over 10 years to create a federal Pregnancy Assistance Fund, which will provide assistance to pregnant and parenting teenagers and college students, as well as pregnant victims of domestic violence; another Senate provision not in the House bill would increase federal financing for adoption by $1.2 billion over the next two years.

The Senate bill also explicitly allows states to bar any policies in the federally created insurance exchanges from providing abortion coverage. So Utah or Mississippi or any other state could simply pass a law barring all plans in the exchanges from covering abortion. The House bill does not allow states to do that.

So the final verdict is that the Senate health care reform bill does not pay for or promote abortion, and it will arguably reduce abortions as well as providing good, affordable health care to millions of women and children who now go without — and suffer for it.

So, in essence, Stupak is not only blocking reform just for his own political power, versus real pro-life belief, he’s hurting his party and constituents, too. 

What a ripe time for a primary opponent!

Rep. Bart Stupak, the pro-life Democrat from Michigan who has made legislative language over abortion funding a flashpoint in the debate over health care reform, is now facing a primary challenger from the left. Connie Saltonstall, a former Charlevoix County commissioner and retired businesswoman from Charlevoix, Mich. who announced her primary challenge Tuesday.

“The main issue is he was willing to sacrifice health care reform because of abortion funding,” Saltonstall told CNN. “He’s been my congressman for many years. I have compromised voting for him because of his position on choice. Health care and choice are two issues I am especially concerned about.”

Saltonstall also says she will continue her campaign regardless of the final abortion language in the health care bill, or Stupak’s vote.

“The people in our district lost trust in him. At dinners, he did powerpoint presentations on health care telling us he was going to introduce amendments, but telling us he would support health care regardless of the amendment. But then when the amendment passed, at his press conference he stated if his amendment language was not included, he would take the bill down. He has continued to say he would not vote for the health care bill unless his language was put in,” she explained.

You can learn more about Stupak’s challenger in her interview with Jodi Jacobson, RH RealityCheck’s Editor-in-Chief.

Mini-Roundup: Nothing says “SPRING BREAK!” like the Truth Truck.  Those guys really know how to celebrate!  They’d be better off if they brought some of the new condoms with them.

March 11, 2010

Abortion bill amended, clears House committee – Daily Mail – Charleston

Stupak, Other House Dems, Vow To Kill Healthcare Bill Over Abortion Language – Personal Liberty Digest

A drive to fight abortion – San Jose Mercury News

The Senate Bill Funds Abortions? Nope, and It’s More Pro-Life Than the House … -Politics Daily

Lira Hospital runs out of contraceptives – New Vision

People get lack of Family Planning Program Information – BeritaJakarta.com

Steps toward a healthy community – Homer News

Preventing Teen Pregnancy – WJBF-TV

Birth center set to open in area – St. Louis Post-Dispatch

High C-section rate spurs call for change – Detroit Free Press

Reality of avoidable maternal mortality is so hard to bear – The Herald

Blacks New Best Frenemy: The Antiabortionists… – Eurweb.com

Isabella county woman charged with failing to disclose her HIV-positive status … – Michigan Messenger

42 Million Condoms Being Sent to South Africa for World Cup – MyFox Spokane

Revamped Female Condom Gets Promotional Push – AOL News

A Better Female Condom – Newsweek

March 10, 2010

No compromise seen on health care abortion battle – Washington Examiner

Deliberations are next for jury in 2 Mich. deaths – 9&10 News

State Senate passes abortion bills – Tulsa World

Women’s Reproductive Rights: An Update – The Journal

Lawmakers look for a quick buck with sponsored license plates – Tampabay.com

Stupak facing primary challenger over abortion funding – CNN Political Ticker

Tom Cruise’s Religion in the Spotlight Over Forced Abortion Allegations – Lifesite

House Judiciary advances abortion bill with changes – Charleston Gazette

Supporters of Georgia bill: Abortion providers are racist – MiamiHerald.com

Utah law potentially endangers mothers’ rights – RU Daily Targum

A View of Abortion From Three Eras – New York Times

Mitt Romney’s Abortion Stance: ‘I Never Really Called Myself Pro-Choice’ – Huffington Post

Divisiveness Of Abortion Impedes Health Care Plan – WBUR

Powerful Catholic Quietly Shaping Abortion, Health Bill Debate – NPR

Santorum makes pitch for Iowa evangelical voters – The Associated Press

New Utah Law Holds Women Criminally Liable for Illegal Abortions – AOL News

Program pays addicts to use birth control – Honolulu Star-Bulletin

MYANMAR: Abortion a leading cause of maternal death – IRINnews.org

Feminomics: Pro-Life Atlanta’s Big Lie to Poor and Minority Women – Huffington Post

Woman conceives despite family planning surgery – Times of India

Lawmakers delay health care conscience bill – CNBC

Statement by the Joint United Nations Programme on HIV/AIDS and the United … – United Nations Development Fund for Women (UNIFEM)

President Clinton Defends Family Planning Abroad, Says Women In Developing … – Talk Radio News Service

Planned Parenthood presses Colorado lawmakers to support maternity coverage – The Colorado Independent

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “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.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.