So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.
Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
Signs of Progress
The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedtstruck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear.
Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.
More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.
As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.
But the Assault Continues
Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:
Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.
The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:
South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
My life’s work has been to transform the conversation about abortion, so I am overcome with joy at the Supreme Court ruling in Whole Woman’s Health v. Hellerstedt. Abortion providers have been living under a very dark cloud since the 2010 elections, and this ruling represents a new day.
Abortion providers can finally begin to turn our attention from the idiocy and frustration of dealing with legislation whose only intention is to prevent all legal abortion. We can apply our energy and creativity fully to the work we love and the people we serve.
My work has been with independent providers who have always proudly delivered most of the abortion care in our country. It is thrilling that the Court recognized their unique contribution. In his opinion, after taking note of the $26 million facility that Planned Parenthood built in Houston, Justice Stephen Breyer wrote:
More fundamentally, in the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.
This is a critical time to build on the burgeoning recognition that independent clinics are essential and, at their best, create a sanctuary for women. And it’s also a critical time for independent providers as a field to share, learn from, and adopt each other’s best practices while inventing bold new strategies to meet these new times. New generations expect and demand a more open and just society. Access to all kinds of health care for all people, including excellent, affordable, and state-of-the-art abortion care is an essential part of this.
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We’ve been under attack and hanging by a thread for so long—with our financial, emotional, and psychic energies drained by relentless, unconstitutional anti-abortion legislation—it’s been almost impossible to create and carry out our highest vision of abortion care.
Clearly 20-week bans don’t pass the undue burden test, imposed by the Court under Planned Parenthood v. Casey, because they take place before viability and abortion at 20 weeks is safer than childbirth. The federal Hyde Amendment, a restriction on Medicaid coverage of abortion, obviously represents an undue burden because it places additional risk on poor women who can’t access care as early as women with resources. Whatever the benefit was to late Rep. Henry Hyde (R-IL) it can’t possibly outweigh that burden.
Some of these have already been rejected by the Court and, in Alabama’s case, an attorney general, in the wake of the Whole Woman’s Health ruling. Others will require the kind of bold action already planned by the Center for Reproductive Rights and other organizations. The Renaissance involves raising an even more powerful voice against these regulations, and being firm in our unwillingness to spend taxpayer dollars harming women.
I’d like to entertain the idea that we simply ignore regulations like these that impose burdens and do not improve health and safety. Of course I know that this wouldn’t be possible in many places because abortion providers don’t have much political leverage. This may just be the part of me that wants reproductive rights to warrant the many risks of civil disobedience. In my mind is the man who stood in front of moving tanks in Tiananmen Square. I am yearning for all the ways to stand in front of those tanks, both legal and extralegal.
Early abortion is a community public health service, and a Renaissance goal could be to have early abortion care accessible within one hour of every woman in the country. There are more than 3,000 fake clinics in this country, many of them supported by tax dollars. Surely we can find a way to make actual services as widely available to people who need them. Of course many areas couldn’t support a clinic, but we can find ways to create satellite or even mobile clinics using telemedicine to serve women in rural areas. We can use technology to check in with patients during medication abortions, and we can provide ways to simplify after-care and empower women to be partners with us in their care. Later abortion would be available in larger cities, just as more complex medical procedures are.
In this brave new world, we can invent new ways to involve the families and partners of our patients in abortion care when it is appropriate. This is likely to improve health outcomes and also general satisfaction. And it can increase the number of people who are grateful for and support independent abortion care providers and who are able to talk openly about abortion.
We can tailor our services to learn which women may benefit from additional time or counseling and give them what they need. And we can provide abortion services for women who own their choices. When a woman tells us that she doesn’t believe in abortion, or that it is “murder” but she has to have one, we can see that as a need for deeper counseling. If the conflict is not resolved, we may decide that it doesn’t benefit the patient, the clinic, or our society to perform an abortion on a woman who is asking the clinic to do something she doesn’t believe in.
I am aware that this last idea may be controversial. But I have spent 40 years counseling with representatives of the very small, but real, percentage of women who are in emotional turmoil after their abortions. My experience with these women and reading online “testimonies” from women who say they regret their abortions and see themselves as victimized, including the ones cited by Justice Kennedy in the Casey decision, have reinforced my belief that when a woman doesn’t own her abortion decision she will suffer and find someone to blame for it.
We can transform the conversation about abortion. As an abortion counselor I know that love is at the base of women’s choices—love for the children they already have; love for their partners; love for the potential child; and even sometimes love for themselves. It is this that the anti-abortion movement will never understand because they believe women are essentially irresponsible whores. These are the accusations protesters scream at women day after day outside abortion clinics.
Of course there are obstacles to our brave new world.
The most obvious obstacles are political. As long as more than 20 states are run by Republican supermajorities, legislatures will continue to find new ways to undermine access to abortion. The Republican Party has become an arm of the militant anti-choice movement. As with any fundamentalist sect, they constantly attack women’s rights and dignity starting with the most intimate aspects of their lives. A society’s view of abortion is closely linked to and mirrors its regard for women, so it is time to boldly assert the full humanity of women.
Anti-choice LifeNews.com contends that there have been approximately 58,586,256 abortions in this country since 1973. That means that 58,586,256 men have been personally involved in abortion, and the friends and family members of at least 58,586,256 people having abortions have been too. So more than 180 million Americans have had a personal experience with abortion. There is no way a small cadre of bitter men with gory signs could stand up to all of them. So they have, very successfully so far, imposed and reinforced shame and stigma to keep many of that 180 million silent. Yet in the time leading up to the Whole Woman’s Health case we have seen a new opening of conversation—with thousands of women telling their personal stories—and the recognition that safe abortion is an essential and normal part of health care. If we can build on that and continue to talk openly and honestly about the most uncomfortable aspects of pregnancy and abortion, we can heal the shame and stigma that have been the most successful weapons of anti-abortion zealots.
A second obstacle is money. There are manyextraordinary organizations dedicated to raising funds to assist poor women who have been betrayed by the Hyde Amendment. They can never raise enough to make up for the abandonment of the government, and that has to be fixed. However most people don’t realize that many clinics are themselves in financial distress. Most abortion providers have kept their fees ridiculously and perilously low in order to be within reach of their patients.
Consider this: In 1975 when I had my first job as an abortion counselor, an abortion within the first 12 weeks cost $150. Today an average price for the same abortion is around $550. That is an increase of less than $10 a year! Even in the 15 states that provide funding for abortion, the reimbursement to clinics is so low that providers could go out of business serving those in most need of care.
Over the years a higher percent of the women seeking abortion care are poor women, women of color, and immigrant and undocumented women largely due to the gap in sexual healtheducation and resources. That means that a clinic can’t subsidize care through larger fees for those with more resources. While Hyde must be repealed, perhaps it is also time to invent some new approaches to funding abortion so that the fees can be sustainable.
Women are often very much on their own to find the funds needed for an abortion, and as the time goes by both the costs and the risk to them increases. Since patients bear 100 percent of the medical risk and physical experience of pregnancy, and the lioness’ share of the emotional experience, it makes sense to me that the partner involved be responsible for 100 percent of the cost of an abortion. And why not codify this into law, just as paternal responsibilities have been? Perhaps such laws, coupled with new technology to make DNA testing as quick and inexpensive as pregnancy testing, would shift the balance of responsibility so that men would be responsible for paying abortion fees, and exercise care as to when and where they release their sperm!
In spite of the millions of women who have chosen abortion through the ages, many women still feel alone. I wonder if it could make a difference if women having abortions, including those who received assistance from abortion funds, were asked to “pay it forward”—to give something in the future if they can, to help another woman? What if they also wrote a letter—not a bread-and-butter “thank you” note—but a letter of love and support to a woman connected to them by the web of this individual, intimate, yet universal experience? This certainly wouldn’t solve the economic crisis, but it could help transform some women’s experience of isolation and shame.
One in three women will have an abortion, yet many are still afraid to talk about it. Now that there is safe medication for abortion, more and more women will be accessing abortion through the internet in some DIY fashion. What if we could teach everyone how to be excellent abortion counselors—give them accurate information; teach them to listen with nonjudgmental compassion, and to help women look deeper into their own feelings and beliefs so that they can come to a sense of confidence and resolution about their decision before they have an abortion?
There are so many brilliant, caring, and amazing people who provide abortion care—and room for many more to establish new clinics where they are needed. When we turn our sights to what can be, there is no limit to what we can create.
Being frustrated and helpless is exhausting and can burn us out. So here’s a glass of champagne to being able to dream again, and to dreaming big. From my own past clinic work:
At this clinic we do sacred work
That honors women
And the circle of life and death.