On Tuesday, the Hill published a story claiming a federal investigation uncovered AmeriCorps volunteers allegedly violating federal law by assisting patients seeking abortions. But as is typical of abortion-related reporting in the press, the Hill‘s piece left more questions than answers and more assumptions than fact, even as conservatives moved to leverage the alleged incident into an attack on public health care.
As reported by Rewire’s Christine Grimaldi, the inspector general’s office for the Corporation for National and Community Service (CNCS), the federal agency that oversees AmeriCorps, investigated allegations that AmeriCorps volunteers worked with a grantee organization to provide emotional support, or doula care, to abortion patients.
According to the findings released by the CNCS, which form the basis of the the Hill reporting, such abortion doula work violated the Edward M. Kennedy Serve America Act, the 2009 law reauthorizing the AmeriCorps program. That Act prohibits staff and members from “providing abortion services or referrals for receipt of such services.”
The Hill went on to state that the employees were acting as “clinic escorts, otherwise known as abortion doulas” and detailed the concessions AmeriCorps agreed to with CNCS investigators once this “illegal” activity was uncovered.
Sounds bad for AmeriCorps if its volunteers have violated federal law by working as abortion clinic escorts, doesn’t it?
It also sounds precisely like an anti-choice talking point, which is what should have given the Hill pause to at least ask a couple of follow-up questions.
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Again, AmeriCorps volunteers are restricted under the Serve America Act from providing abortion services or referrals for receipt of such services. However, the Act continues, they “may exercise their rights as private citizens and may participate in the activities listed above [such as the abortion restrictions] on their initiative, on non-AmeriCorps time, and using non- CNCS funds. Individuals should not wear the AmeriCorps logo while doing so.”
So that means AmeriCorps volunteers are free to work as abortion doulas on their own time and not wearing AmeriCorps gear to do so. They can also do so working as abortion clinic escorts—which are not the same thing as doulas—who help patients navigate a gauntlet of anti-choice protesters outside abortion clinics on their way into their procedures.
The government’s own findings provide zero information as to whether these volunteer activities happened on personal time or not. The first question to ask then is: When did these activities happen? Assuming the AmeriCorps volunteers didn’t do this work on AmeriCorps time, then there is not an issue of illegality.
It also matters what exactly these AmeriCorps volunteers were doing when they were allegedly offering abortion support services. The language used in AmeriCorps guidance forbidding volunteers from directly or indirectly “provid[ing] abortion services or referrals” is pretty vague. Not surprisingly, it is also language that anti-choice lawmakers have peppered in statutes throughout the states—and that the courts have had a chance to look at and offer guidance on.
In the 1989 case Webster v. Reproductive Health Services, the U.S. Supreme Court examined a series of Missouri laws restricting abortion rights, which included forbidding public employees from performing or “assisting abortions” unnecessary to save the mother’s life. The lower courts, including the conservative U.S. Court of Appeals for the Eighth Circuit, struck down the provisions as unconstitutional. Specifically, on the question of just what constitutes “assisting” an abortion, the federal appeals court wrote:
We cannot accept the conclusion that “assisting” an abortion encompasses driving or escorting the patient to the location where the procedure is to take place. The abortion itself does not take place in the vehicle or as the patient is being escorted. We think a more reasonable interpretation of the phrase “assisting an abortion” is the one suggested by the state: direct participation in the surgical procedure itself.
When the Supreme Court took up the Webster case, it did not address the “assisting” question because the State of Missouri failed to specifically appeal that portion of the Eighth Circuit’s ruling, meaning that interpretation stands. As far as the courts are concerned, “assisting an abortion” means direct participation in the surgical procedure itself.
In constitutional terms, if a law—like the one at issue in Webster—is vague, it violates both equal protection and due process, because how can you comply with a law if you don’t know what it means? No court has ruled on whether the abortion-related prohibitions applied to AmeriCorps volunteers are equally vague, but given that the language of the restrictions nearly mirrors the language of the one in Webster, and further given the carve-outs allowed for volunteers to do abortion work on their own time, it would take an extreme act of judicial activism to rule otherwise.
Now, not all journalists are lawyers and not all journalists cover reproductive rights on the daily. So maybe not asking about some of these details is a function of a lack of experience and consistency in the subject area.
But an outlet like the Hill covers, as its focus, politics. So any of its reporters should be asking, at the very least, “What is the political play in this story?”
Not surprisingly, the political play by conservatives appears in part to be to use this apparently unsubstantiated two-page report to launch a series of investigations into the federal funding of all community health centers. The funding of such centers is one of the cornerstones of the Affordable Care Act in expanding health-care access to traditionally underserved populations. Almost immediately following the Hill story, Rep. Tom Cole (R-OK), who chairs an influential House Appropriations Committee panel in charge of health spending, called on the Obama administration to launch a nationwide investigation on community health centers’ compliance with federal law.
“Since the prohibitions relating to abortion in the Serve America Act are similar to prohibitions carried annually in appropriations acts, I have concerns that health centers may not be complying with restrictions in the Labor-HHS spending bills,” he said in a separate letter to the inspector general’s office for the Department of Health and Human Services.
There it is, folks. The Trojan Horse of abortion panic being rolled out once again to attack public health care, specifically public health care for the most vulnerable populations, like those served in community health centers—regardless if that health center offers reproductive health care or not. This is the same conservative logic of the Hyde and Helms Amendments, which have proven disastrous for access to reproductive health care while simultaneously being treated as “law of the land” by the media and politicians alike, despite the fact both Hyde and Helms could be repealed anytime Congress chose. Hyde and Helms, which restrict the use of public funds for abortions domestically and internationally with very rare exception, are built on the abortion panic of poor women fleecing innocent taxpayers to subsidize “irresponsible” sex. Conservatives were similarly successful with the strategy of using abortion panic when first debating the Affordable Care Act (ACA) too: This led to the Stupak-Pitts Amendment, which replicates Hyde’s abortion funding ban in ACA insurance exchanges. And we saw it yet again with conservatives equating contraception with abortion in their wave of litigation challenging the birth control benefit in the ACA
And rarely did mainstream media blink or challenge conservatives on these tactics. And in each instance, the administration caved.
“We moved immediately to cease the activity in question, and suspended the identified site’s AmeriCorps members for a period until they and their site supervisors were retrained and revised member service contracts were reviewed and signed,” NACHC Chief Operating Officer Dave Taylor said in a statement following the report.
Despite at least a handful of explanations of how these actions by AmeriCorps volunteers could be lawfully explained, the administration blinked. And in doing so, it enabled the press to continue with its same complacent reporting on reproductive rights, despite the fact these are not just stories, but real lives on the line.