Commentary Abortion

Beyond Federal Funding for Contraception: Taking a Firm Stance on the Hyde Amendment

Angi Becker Stevens

The term “pro-choice” has very little meaning if we are only defending the choice for those who can afford it.

Over the past few months, in discussing the attack on Planned Parenthood’s federal funding, I—along with probably just about every other feminist and pro-choice activist in the country—found myself repeating “but they already don’t get federal funding for abortion!” so many times I felt like a broken record. It has been necessary, thanks to a proliferation of misleading articles and statements on the subject, to offer that kind of clarification. At the same time, however, I’ve been increasingly concerned that in our haste to remind everyone that this particular political battle is not about funding for abortion, we’ve given the impression that it’s perfectly valid and acceptable that abortion remain ineligible for federal funding. It feels almost as if we’re saying: “oh no, no, we would never ask for taxpayer money for that! We’re talking about breast exams!” And while clarity is absolutely important, and people do need to understand exactly what’s at stake in the current budget wars and what isn’t, I would argue that it’s equally vital that we not throw abortion rights under the bus in an effort to protect other family planning and health services.

Amanda Marcotte eloquently addressed some of the misgivings I’ve been feeling here recently. But I would like to add to the dialogue some thoughts not just on abortion access in general, but specifically on the topic of federal funding for abortion. When worded that way, it’s already something of a misnomer—“federal funding for abortion” calls to mind some kind of specific U.S. abortion fund for anyone who wants it. What we’re really talking about here is whether tax dollars can be used for abortion in the same way they’re used for countless other medical procedures via Medicaid and other government-funded health and welfare programs. Since the Hyde amendment passed in 1976, such programs have only been able to provide abortion coverage under extreme and rare circumstances. And it seems to me that even a fair number of people who consider themselves to be pro-choice are willing to accept this as a reasonable compromise: of course abortion should be legal, but we shouldn’t expect people who don’t agree with it to pay for it! It is a rhetoric liberals engage in far too often: asking for personal liberty, and bending over backward to insist those liberties won’t infringe in any way on anyone else.

What this stance ignores, of course, is that nearly all use of our tax dollars is controversial in some way. Huge numbers of us oppose the wars we’re engaged in and overblown military spending in general. I have deep, ethical feelings about the tax-breaks that are given to big corporations while funding for social services and education are slashed. But it is unlikely that any conservative is ever going to say something like: “Oh, I understand what sensitive issues these are—we’re not asking to use your tax dollars for wars you ethically oppose!” The very notion is laughable. And yet that’s exactly the kind of “let’s not step on anyone’s toes” concession that liberals are willing to make with regard to the use of tax dollars for abortion.

Consider, too, the danger of applying this “we won’t fund it if it’s controversial” thinking to other medical issues. What if we passed an amendment prohibiting the use of Medicaid for the treatment of HIV/AIDS-related illnesses? What if we barred all Medicaid payment for any illness or injury that could result from risky behaviors, such as smoking, drinking, being sexually active, or even engaging in potentially physically dangerous sports or hobbies? Or, what if we eliminated all LGBTQ folks from eligibility for all social assistance because some people don’t agree with their “lifestyle” and therefore don’t want to support them in any way? There is no doubt in my mind that some extreme conservatives would think those things all sound like excellent suggestions. But there would not—I fervently hope—ever be enough public support for such regulations to make them a reality. Why should abortion be any different? Why should the ethical objection of a few be considered reasonable cause for restricting access to a safe and legal medical procedure?

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The term “pro-choice” has very little meaning if we are only defending the choice for those who can afford it. I’ll never forget a few years ago, overhearing a young man on the phone in the hallway of a community college. “She’s going to have the baby,” he said. And then, after a pause, “yeah, she was gonna get one, but it cost like five hundred bucks.” Is this really what we mean by “choice”?

It takes a certain degree of privilege to ignore what a huge barrier the Hyde amendment creates for those in or near poverty. For many who are comfortably middle-class, it seems good enough that abortion is simply legal. Having to pay out of pocket for it is a compromise many women are willing to make. But for countless others, that cost is not just an inconvenience, it’s literally the difference between whether or not abortion is actually an available option. In the years between Roe’s legalization of abortion and Hyde’s prohibition of Medicaid coverage, Medicaid paid for about one third of abortions nationwide, affirming the fact that what we’re talking about is more than just a small group of women who are impacted by the amendment. And without abortion coverage, those women are left to sell personal belongings, forgo paying other bills, or to cut back spending on basic necessities like food in order to save up the money necessary for the procedure. Many simply end up continuing their pregnancies to term. And while I support and advocate for the right of all women to choose motherhood regardless of their economic position, it also goes without saying that a woman who desires an abortion but cannot afford one is not likely to find herself in a better financial situation after being forced into motherhood.

The National Network of Abortion Funds provides an invaluable service and does its best to provide financial assistance for women unable to afford abortion. But the funds cannot possibly help everyone—nor should they have to. It’s high time that all who would proudly wear the pro-choice label stop being acquiescent with regard to the Hyde amendment. Fighting for equal access to abortion means treating that access as a right, not a luxury. Let’s keep making corrections and clarifications when we hear people talking about the debate over Planned Parenthood’s funding. There’s certainly nothing wrong with pointing out: “hey, it’s not about abortion!” But maybe while we’re at it, we can start some conversations about the Hyde amendment, too—offering up an education on what it is, and why it desperately needs to go.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.