The Medicaid sterilization consent rules require a minimum 30-day waiting period to get individuals’ written informed consent prior to sterilization—a critical step in helping underserved women to obtain true reproductive justice, which remains an elusive goal.
Women of color created and defined the concept of reproductive justice, which is firmly rooted in a human rights framework that supports the ability of all women to make and direct their own reproductive decisions. These decisions could include obtaining contraception, abortion, sterilization, and/or maternity care. Accompanying that right is the obligation of the government and larger society to create laws, policies, and systems conducive to supporting those decisions.
For many underserved women, however, obtaining true reproductive justice has remained an elusive goal. From the 1920s to the 1970s, the ultimate level of denial of reproductive freedom occurred when women of color, low-income individuals, and immigrant women were subjected to routine government-sponsored sterilization without their knowledge or consent.
Underserved women in the United States continue to experience disparities that harm their reproductive health. Compounding this problem is the nation’s track record of interference with the reproductive lives of women in these communities. Infamous legal cases also arose due to the harm caused to women across the country, such as in Buck v. Bell (low-income white women in Virginia), Relf v. Weinberger (young African-American women in Alabama), and Madrigal v. Quilligan (Latinas of Mexican origin in California). All of these cases focused on laws and policies authorizing sterilizations of certain individuals without their knowledge or consent for the “benefit” of society.
Abusive sterilization practices became another type of intrusion. Some sterilizations occurred without women’s knowledge or consent while they were under anesthesia or during labor. Providers misinformed some women about the permanent nature of sterilization or failed to counsel them about other reversible methods of contraception. If immigrant and low-income women did not consent to sterilization, some authorities threatened them with deportation or the withholding of public benefits or health treatment.
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More reports allege that from 2006 to 2010, prison officials and providers authorized sterilizations of incarcerated women in California without their prior knowledge and consent. Many of these women were women of color. In 2010, Latinas and Black women made up 59 percent of California’s prison population. This indicates that incarcerated women of color may still experience the denial of their own bodily autonomy when receiving state-provided health care.
Women of color advocates and their supporters fought to end the practice of unconsented sterilizations in the 1970s. One important result occurred in 1979. It was the creation of a Medicaid regulation establishing a minimum 30-day waiting period to get individuals’ written informed consent prior to sterilization.
The Medicaid sterilization consent requirement remains in effect today. A few researchers and health providers have questioned the continued need for the regulation’s 30-day waiting period. Their concerns include the regulation’s barrier to timely post-partum tubal ligations; the consent form, which does not reflect the needs of low literacy and limited English proficient readers; and the logistical barriers the waiting period presents for health providers.
Given the historic context and lingering reproductive inequalities involving underserved women, the undersigned organizations believe an informed dialogue between stakeholders is a critical first step in any re-evaluation of the Medicaid sterilization consent requirement. This dialogue should address the following questions:
What data and/or complaints support the continued need for the minimum 30-day waiting period?
What data support the need to revise the waiting period?
What groups of underserved women have experienced sterilization without their informed consent? What data and/or complaints are available to document this?
Issues with informed consent:
How does the 30-day window pose barriers to sterilization?
How could these barriers be addressed? Would incorporating sterilization counseling into routine family planning, well-woman, or pre-natal visits be effective or sufficient?
What other policies or practices are designed to prevent sterilization without informed consent? Who is responsible for their oversight? How effective are these regulations and policies?
What improvements to the Medicaid sterilization consent form would reflect the needs of women with disabilities, limited English proficiency, and low literacy levels, who want sterilization?
How and when do providers inform women of the full range of their contraceptive options that include long acting contraception (LARCs) and other methods?
What gaps in access to the full range of contraceptive options continue to exist for women of color, low-income women, and immigrant women? How are these barriers being addressed?
How will health-care reform and rulings related to contraceptive access affect women’s ability to access their full range of contraceptive options? How will the current political climate affect women’s need for sterilization and providers’ thinking around it?
A meaningful dialogue among reproductive justice advocates, women’s health advocates, health-care providers, state and federal officials, and other stakeholders that addresses these issues and related concerns can only serve to advance reproductive autonomy and justice for all women.
Asian & Pacific Islander American Health Forum
Black Women for Wellness
Black Women’s Health Imperative
California Latinas for Reproductive Justice
Jacobs Institute of Women’s Health – The George Washington University
National Asian Pacific American Women’s Forum
National Health Law Program
National Latina Institute for Reproductive Health
National Women’s Health Network
National Women’s Law Center
Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.
“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote theNew York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”
“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”
Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equality; declaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.
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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”
Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.
But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:
Myth #1: Planned Parenthood Profits From Fetal Tissue Donations
Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:
We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.
Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:
We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.
The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.
Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.
Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”
Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt
In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:
We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.
The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewireexplained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:
As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”
Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain
The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:
Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.
Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.
Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.
Myth #4: Abortion “Endangers the Health and Well-being of Women”
In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:
Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.
Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”
There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”
As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.
Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”
Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:
We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.
Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.
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.”