Commentary Law and Policy

Open Letter to the Kansas Office of the Repealer

Julie Burkhart

Governor Brownback  has established the Office of the Repealer to help rid Kansas of “unreasonable, unduly burdensome, duplicative, onerous or conflicting laws.” My organization was able to think of just a few recent laws that are extremely unreasonable, duplicative, and overly burdensome to hard-working women and families.

The wave of anti-choice legislation that has passed across the nation over the last several years has been particularly impactful in Kansas, where my organization, Trust Women, is fighting to provide access to comprehensive maternal and reproductive care. In a pretty incredible display of disconnect, Governor Brownback, whose government has established some of the most stringent anti-abortion laws in the nation, has established the Office of the Repealer to help rid the state of “unreasonable, unduly burdensome, duplicative, onerous or conflicting laws.”

My organization was able to think of just a few recent laws that are extremely unreasonable, overly burdensome to hard-working women and families, duplicative of already existing oppressive state or federal legislation, and in serious conflict with women’s ability to control their reproductive choices. This office has an opportunity to turn back the tide of anti-choice legislation set forth, not by the people of Kansas, but by our misguided elective representatives, who seem unable to trust women to make the best decisions for themselves and their families.

We encourage every state government that has passed similar, coordinated attacks on women’s reproductive health care to do the same.

To the Office of the Repealer,

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According to the state of Kansas, your office has been given the task of sorting through “unreasonable and burdensome laws,” in the interest of repealing as many as is needed to ensure that your citizens live peacefully and without undue government interference. We were told we should contact you in the event that we “believe that an unreasonable, unduly burdensome, duplicative, onerous or conflicting law, regulation or other governing instrument, detrimental to the economic well-being of Kansas, exists.” We do, in fact, believe that just such a burden has been levied on the women of the state, and we have a list of laws we would like to see repealed, effective immediately. We submit for your consideration:

65-6708, 65-6709 – “Woman’s Right to Know” Act, which subjects women who seek an abortion to an unnecessary waiting period and requires physicians to offer to show them a sonogram of the fetus, as well as to listen to the fetal heartbeat.

Since the recession, an estimated 73% of women having abortions are already raising children. This means more than half of the women seeking to terminate a pregnancy are already mothers. These women are well aware of what a sonogram looks like. There is no need to subject them to burdensome, time-consuming, not to mention costly measures designed to shame and guilt them. More than a “right” to information they do not want and did not ask for, women have a right to undergo a legal medical procedure without state morality police telling them what is right and wrong. In addition, the law requires the state to supply, for free, medically dubious literature for physicians to offer to their patients. Surely the state’s limited resources could be put to better use.

HB 2218 – 22 Week Ban on Abortion

This bill illegally undermined the Supreme Court Decision Roe v Wade by making abortions illegal in the state of Kansas at 22 weeks, with no exception for severe fetal abnormalities. This is extremely burdensome for women who find out late in the pregnancy that the fetus has no heart, or brain, and will not survive outside the womb, thus forcing them to carry a non-viable child to term and undergo the trauma of giving birth to a child that is already dead – forcing them to serve as living tombs, a circumstance that undoubtedly causes psychological as well as physical trauma. This law also places an extraordinary economic burden on the citizens of Kansas in several ways. First, these women will require medical care that would not be required if they were to be allowed to terminate the pregnancy. Second, because the law is unconstitutional given the Roe decision, the state will be called upon to defend it, and precious state resources, including both time and money, will be sucked up in an unnecessary legal battle, fighting to defend an indefensible law that places an enormous burden on the women of Kansas.

HB 2035 – Omnibus Abortion Restriction Bill

This Omnibus Abortion Restriction Bill is repetitive and unnecessary, creating double parental consent laws for minors. Studies indicate that the majority or minors who seek termination of pregnancy services do talk to at least one parent. This intrusion only pushes minors who feel that they cannot talk with both parents to discontinue communication with those family members with whom they feel safe. Why put our minors at risk? In addition, parts of the law open providers up to litigation, putting an unnecessary burden on the medical profession as well as the state courts.

H Sub SB 36 – Targeted Regulations against Abortion Providers

These laws are the epitome of unnecessary and burdensome, holding clinics where abortions are performed to more stringent regulations than some hospitals and ambulatory surgical centers in the same state. Abortions performed during the first trimester are significantly less likely to have complications than actually giving birth. The law briefly shut down (until there was an injunction filed) two of the three facilities where the women of Kansas go to receive abortion care. The ramifications of shutting down clinics puts the burden right back on women, requiring many patients to travel hundreds of miles and take additional time off from work. These laws require women to choose between feeding their families, keeping their job, and undergoing a legal medical procedure. The cost to women’s health and lives will become a burden on the state.

HB 2075 – Abortion Coverage Insurance Ban

Finally, the state has gone too far in interfering with what private insurers can and cannot cover for their patients. Nothing could be more intrusive than telling private companies what they can offer their customers. For a state government that has repeatedly refused to regulate corporations in order to best serve the interests of its citizens to then turn around and put burdensome, unnecessary, intrusive regulations on women’s health care is unconscionable.

We believe overturning these laws and regulations is well within the scope of your charge, and we hope you will do so immediately, for the sake of the health of every woman in the state of Kansas.

Trust Women

For more information on regional access to reproductive care in the Midwest and South, follow us on Twitter @TrustWomen.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

Commentary Politics

Democrats’ Latest Platform Silent on Discriminatory Welfare System

Lauren Rankin

The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. But there is a critical issue—one that affects millions in the United States—that is missing entirely from the draft: fixing our broken and discriminatory welfare system.

While the Republican Party has adopted one of the most regressive, punitive, and bigoted platforms in recent memory, the Democratic Party seems to be moving decisively in the opposite direction. The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. It calls for a federal minimum wage of $15; a full repeal of the Hyde Amendment, which prohibits the use of federal Medicaid funding for abortion care; and a federal nondiscrimination policy to protect the rights of LGBTQ people.

All three of these are in direct response to the work of grassroots activists and coalitions that have been shifting the conversation and pushing the party to the left.

But there is a critical issue—one that affects millions in the United States—that is missing entirely from the party platform draft: fixing our broken and discriminatory welfare system.

It’s been 20 years since President Bill Clinton proudly declared that “we are ending welfare as we know it” when he signed into law a sweeping overhaul of the U.S. welfare system. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 implemented dramatic changes to welfare payments and eligibility, putting in place the Temporary Assistance for Needy Families (TANF) program. In the two decades since its enactment, TANF has not only proved to be blatantly discriminatory, but it has done lasting damage.

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In one fell swoop, TANF ended the federal guarantee of support to low-income single mothers that existed under the now-defunct Aid to Families with Dependent Children (AFDC) program. AFDC had become markedly unpopular and an easy target by the time President Clinton signed welfare reform legislation into law, with the racist, mythic trope of the “welfare queen” becoming pervasive in the years leading up to AFDC’s demise.

Ronald Reagan popularized this phrase while running for president in 1976 and it caught fire, churning up public resentment against AFDC and welfare recipients, particularly Black women, who were painted as lazy and mooching off the government. This trope underwrote much of conservative opposition to AFDC; among other things, House Republican’s 1994 “Contract with America,” co-authored by Newt Gingrich, demanded an end to AFDC and vilified teen mothers and low-income mothers with multiple children.

TANF radically restructured qualifications for welfare assistance, required that recipients sustain a job in order to receive benefits, and ultimately eliminated the role of the federal state in assisting poor citizens. The promise of AFDC and welfare assistance more broadly, including SNAP (the Supplemental Nutrition Assistance Program, commonly known as food stamps) benefits, is that the federal government has an inherent role of caring for and providing for its most vulnerable citizens. With the implementation of TANF, that promise was deliberately broken.

At the time of its passage, Republicans and many Democrats, including President Bill Clinton, touted TANF as a means of motivating those receiving assistance to lift themselves up by their proverbial bootstraps, meaning they would now have to work while receiving benefits. But the idea that those in poverty can escape poverty simply by working harder and longer evades the fact that poverty is cyclical and systemic. Yet, that is what TANF did: It put the onus for ending poverty on the individual, rather than dealing with the structural issues that perpetuate the state of being in poverty.

TANF also eliminated any federal standard of assistance, leaving it up to individual states to determine not only the amount of financial aid that they provide, but what further restrictions state lawmakers wish to place on recipients. Not only that, but the federal TANF program instituted a strict, lifetime limit of five years for families to receive aid and a two-year consecutive limit, which only allows an individual to receive two years of consecutive aid at a time. If after five total years they still require assistance to care for their family and themself, no matter their circumstances, they are simply out of luck.

That alone is an egregious violation of our inalienable constitutional rights to life, liberty, and the pursuit of happiness. Still, TANF went a step further: It also allowed states to institute more pernicious, discriminatory policies. In order to receive public assistance benefits through TANF, low-income single mothers are subjected to intense personal scrutiny, sexual and reproductive policing, and punitive retribution that does not exist for public assistance recipients in programs like Social Security and Supplemental Security Income disability programs, programs that Democrats not only continue to support, but use as a rallying cry. And yet, few if any Democrats are crying out for a more just welfare system.

There are so many aspects of TANF that should motivate progressives, but perhaps none more than the family cap and forced paternity identification policies.

Welfare benefits through the TANF program are most usually determined by individual states based on household size, and family caps allow a state to deny welfare recipients’ additional financial assistance after the birth of another child. At least 19 states currently have family cap laws on the books, which in some cases allow the state to deny additional assistance to recipients who give birth to another child. 

Ultimately, this means that if a woman on welfare becomes pregnant, she is essentially left with deciding between terminating her pregnancy or potentially losing her welfare benefits, depending on which state she lives in. This is not a free and valid choice, but is a forced state intervention into the private reproductive practices of the women on welfare that should appall and enrage progressive Democrats.

TANF’s “paternafare,” or forced paternity identification policy, is just as egregious. Single mothers receiving TANF benefits are forced to identify the father of their children so that the state may contact and demand financial payment from them. This differs from nonwelfare child support payments, in which the father provides assistance directly to the single mother of his child; this policy forces the fathers of low-income single women on welfare to give their money directly to the state rather than the mother of their child. For instance, Indiana requires TANF recipients to cooperate with their local county prosecutor’s child support program to establish paternity. Some states, like Utah, lack an exemption for survivors of domestic violence as well as children born of rape and incest, as Anna Marie Smith notes in her seminal work Welfare Reform and Sexual Regulation. This means that survivors of domestic violence may be forced to identify and maintain a relationship with their abusers, simply because they are enrolled in TANF.

The reproductive and sexual policing of women enrolled in TANF is a deeply discriminatory and unconstitutional intrusion. And what’s also disconcerting is that the program has failed those enrolled in it.

TANF was created to keep single mothers from remaining on welfare rolls for an indeterminate amount of time, but also with the express goal of ensuring that these young women end up in the labor force. It was touted by President Bill Clinton and congressional Republicans as a realistic, work-based solution that could lift single mothers up out of poverty and provide opportunities for prosperity. In reality, it’s been a failure, with anywhere from 42 to 74 percent of those who exited the program remaining poor.

As Jordan Weissmann detailed over at Slate, while the number of women on welfare decreased significantly since 1996, TANF left in its wake a new reality: “As the rolls shrank, a new generation of so-called disconnected mothers emerged: single parents who weren’t working, in school, or receiving welfare to support themselves or their children. According to [the Urban Institute’s Pamela] Loprest, the number of these women rose from 800,000 in 1996 to 1.2 million in 2008.” Weissmann also noted that researchers have found an uptick in “deep or extreme poverty” since TANF went into effect.

Instead of a system that enables low-income single mothers a chance to escape the cycle of poverty, what we have is a racist system that denies aid to those who need it most, many of whom are people of color who have been and remain systemically impoverished.

The Democratic Party platform draft has an entire plank focused on how to “Raise Incomes and Restore Economic Security for the Middle Class,” but what about those in poverty? What about the discriminatory and broken welfare system we have in place that ensures not only that low-income single mothers feel stigmatized and demoralized, but that they lack the supportive structure to even get to the middle class at all? While the Democratic Party is developing strategies and potential policies to support the middle class, it is neglecting those who are in need the most, and who are suffering the most as a result of President Bill Clinton’s signature legislation.

While the national party has not budged on welfare reform since President Bill Clinton signed the landmark legislation in 1996, there has been some state-based movement. Just this month, New Jersey lawmakers, led by Democrats, passed a repeal of the state’s family cap law, which was ultimately vetoed by Republican Gov. Chris Christie. California was more successful, though: The state recently repealed its Maximum Family Grant rule, which barred individuals on welfare from receiving additional aid when they had more children.

It’s time for the national Democratic Party to do the same. For starters, the 2016 platform should include a specific provision calling for an end to family cap laws and forced paternity identification. If the Democratic Party is going to be the party of reproductive freedom—demonstrated by its call to repeal both the federal Hyde and Helms amendments—that must include women who receive welfare assistance. But the Democrats should go even further: They must embrace and advance a comprehensive overhaul of our welfare system, reinstating the federal guarantee of financial support. The state-based patchwork welfare system must be replaced with a federal welfare assistance program, one that provides educational incentives as well as a base living wage.

Even President Bill Clinton and presumptive Democratic presidential nominee Hillary Clinton both acknowledge that the original welfare reform bill had serious issues. Today, this bill and its discriminatory legacy remain a progressive thorn in the side of the Democratic Party—but it doesn’t have to be. It’s time for the party to admit that welfare reform was a failure, and a discriminatory one at that. It’s time to move from punishment and stigma to support and dignity for low-income single mothers and for all people living in poverty. It’s time to end TANF.