Commentary Abortion

The Fallacy of Rape, Incest, and Life Endangerment Clauses

Sarah Erdreich

Any law that allows abortion only in certain cases also helps create two classes of women: those who “deserve” abortions, and those who do not. This is a complete fallacy; all women deserve access to safe abortion care, along with the entire range of reproductive health care.

Earlier this year, North Dakota made headlines for passing the most restrictive abortion law in the country. The bill would ban abortions after a fetal heartbeat can be detected, even in cases of rape and incest, only granting an exception in cases in which a medical emergency threatens a woman’s life.

By refusing to allow a woman to have an abortion when the pregnancy is the result of rape or incest and by defining “life endangerment” so strictly, anti-choice legislators in North Dakota are actually being refreshingly honest about their goals. They don’t just want to ban abortion as early as possible in a pregnancy—they want to ensure that virtually no woman will be able to access safe abortion care.

In light of their honesty, I think it’s past time that the pro-choice movement accept a hard reality: that the rape/incest/life endangerment exemptions are nothing more than a feel-good smokescreen that never deserved to become the acceptable compromise that so many individuals on both sides of the reproductive rights divide seem to treat it as. Insisting that any or all of these exemptions be included in measures that seek to curtail reproductive rights is a waste of time and does a great disservice to all women who seek abortion care.

These exemptions create two huge problems. Practically speaking, they erect barriers to abortion access. And on the societal side, they further stigmatize abortion.

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On the practical side, a “no abortion except in cases of rape” exception makes it harder for a rape victim to get an abortion than a pro-choice law would. We see this play out in the 32 states that allow rape and incest victims to seek Medicaid payment for abortions. (How these states define and fund their Medicaid exemptions is its own complex tangle.) In not one of these states does Medicaid take the patient at her word. Instead, 21 of these states require the doctor to submit a note stating that the woman was raped; the other 11 require a report from either the police or a social services agency. Considering that 54 percent of rape survivors do not report their assaults to the police, this means that many women who become pregnant as a result of rape and wish to terminate their pregnancies will lack the official documentation necessary to qualify for Medicaid coverage.

Even if a woman is able to obtain the necessary documentation, she still must find an accessible clinic that will accept Medicaid reimbursement. A study from Ibis Reproductive Health that examined Medicaid funding in 15 states found that “[i]n most states with restrictions on Medicaid funding, and in three without restrictions, very few of the abortions which the providers thought should be eligible were funded by Medicaid. Most providers had largely given up on working with Medicaid due to the excessive staff time spent trying to get reimbursement, bureaucratic claims procedures, and ill-informed Medicaid staff who hampered their efforts to seek coverage for this care.”

Obtaining an abortion in cases of life endangerment is equally difficult. First, there’s the question of how to define “life endangerment.” Since three states allow public funds to be used both in cases of life endangerment and to safeguard a woman’s physical health, there appears to be some confusion about where one ends and the other begins.

In addition, each state (plus Medicaid) can have their own definition not just of what counts as life endangerment, but how that determination must be made. A 2012 paper examines just how challenging it is to obtain Medicaid reimbursement for abortion procedures: “[I]t is unclear exactly what the documentation is required to prove life endangerment, and what criteria the reviewers at Medicaid are using to assess the condition.” These hazy definitions also extend to the rape exemption, with clinic staff reporting that Medicaid can use different definitions of “rape” than either providers or women.

Given all this, it’s hardly surprising that between 2009 and 2010 the federal Medicaid program contributed to the cost of 331 abortions in cases of rape, incest, or life endangerment. The 17 states that allow public funds to be used in most or all abortion procedures obtained by low-income women, on the other hand, assisted in the cost of 181,000 abortions.

While many of the logistical difficulties of obtaining an abortion in one of these three exemption cases can be traced directly to Medicaid, a number of these barriers also apply to women who are able to pay for abortion care out-of-pocket. Women who became pregnant through rape or incest, or whose lives are threatened by their pregnancy, and who live in states that ban abortion after a certain number of weeks may be particularly vulnerable to the vagaries and complications of obtaining abortion care in those cases.

Aside from the legion of logistical problems encountered by both women and abortion clinic staff, these three exemptions are troubling from a messaging standpoint. First, they help perpetuate the idea that if a woman becomes pregnant through consensual sex, she deserves whatever the consequences are, and that a woman could, or should, only want to terminate a pregnancy in the most exceptional of circumstances. The very existence of these clauses reinforces the stigma that still surrounds abortion, and gives weight to the anti-choice narrative that abortion is an exotic form of medical care that should only be attainable at certain times by certain women.

Speaking of anti-choice narratives, why hasn’t the pro-choice movement made a larger issue of the logical disconnect that the exception stance represents for the anti-choice movement? By deeming abortions allowable in some circumstances but not others, the movement is undercutting its very goal of outlawing abortion entirely. If an entire movement dedicated to repealing Roe v. Wade would allow for abortions under certain circumstances, aren’t they actually at least a little bit pro-choice?

Any law that allows abortion only in certain cases also helps create two classes of women: those who “deserve” abortions, and those who do not. This is a complete fallacy; all women deserve access to safe abortion care, along with the entire range of reproductive health care. Just as a woman’s ability to have an abortion shouldn’t depend on how much money is in her wallet, it also shouldn’t depend on the specific circumstances surrounding conception.

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.

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.”