JURIST Guest Columnist, Yvonne Lindgren, of Indiana Tech law School discusses the implications of the “No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017” and how it will affect poor women and women of color…

On January 24, 2017 the US House of Representatives passed the, No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017 (HR7). The bill makes permanent restrictions on federal funding for abortion in the Hyde Amendment, and restricts the ability of public and private health insurance companies from providing coverage for abortions. HR7 makes the Hyde Amendment funding restrictions permanent so that they can only be reversed by new legislation. The original Amendment provided for an exception to the funding ban for abortions that protect the life of the mother and has since been expanded to include exceptions in cases of rape or incest.

Amidst a barrage [JURIST report] of news about abortion funding restrictions [JURIST report], the passage of HR7 is significant because it represents a deeper entrenchment of a decades-long erosion of funding of the abortion right that started with the Hyde Amendment and has since spread to the Affordable Care Act (ACA) [PDF]. At the same time, a nationwide movement to repeal the Hyde Amendment [PDF] is gaining momentum, lead by All Above All, a coalition of reproductive rights and justice advocates and organizations.

It is a critical time to consider the legal implications of the passage of HR7. Research has shown [PDF] that the constitutional right of abortion cannot be realized if women lack the economic resources to access abortion-related healthcare. Funding restrictions for abortion act as a complete barrier to abortion-related healthcare and disproportionately burden the dignity and bodily autonomy of poor women and women of color. Further funding restrictions create a two-tiered system that protects the constitutional rights of those who can afford them and allows governmental coercion of the reproductive decision-making of those who are most vulnerable. HR7 reduces the value of constitutional rights to mere privileges available only to those with the resources to access abortion-related healthcare. More broadly, federal abortion funding restrictions bring into sharp relief the ways in which access to reproductive rights fall squarely within the pursuit of economic justice.

Background

In 1973, the Supreme Court in Roe v. Wade recognized that the fundamental right to privacy includes the right to decide to have an abortion with certain limitations. One of the earliest attacks on Roe was the Hyde Amendment that excluded abortion coverage from the healthcare services provided to low-income people under the federal Medicaid program. The Hyde Amendment, a budget rider that requires annual congressional approval, has been renewed every year since its introduction in 1976. While most states have similar state-level restrictions on public funding for abortions, currently seventeen states fund abortions for low-income women at the same level as pregnancy-related healthcare. In 2010, the Hyde policy was applied to the ACA and prohibited the use of federal tax subsidies and credits from being used in abortion-related healthcare coverage in private insurance markets.

The Hyde Amendment was upheld by a narrow five-four majority in Harris v. McRae. The majority held that “a woman’s freedom of choice [does not carry] with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” In the court’s view, in choosing to fund costs related to childbirth while restricting funding of abortion, the state was not interfering with protected activity, but rather was expressing a “value judgment favoring childbirth over abortion and . . . implement[ing] that judgment by the allocation of public funds.” It was the woman’s poverty and not the denial of Medicaid coverage, that interfered with her ability to get an abortion. The dissent rejected the majority’s characterization of funding restrictions as expressing a mere preference for childbirth over abortion. Instead, the dissent understood funding as critical to access to the abortion right for poor women. For the dissent, choice and access to healthcare are integrally linked and the practical effect of burdening an individual’s right of access is in effect to unconstitutionally burden the choice itself. As Justice Marshall argued in his dissent: “for a poor person attempting to exercise her ‘right’ of freedom of choice, . . . [the funding restrictions] have precisely the same effect as an outright prohibition.”

Abortion Access and Poor Women

Restrictions on abortion funding disproportionally impact poor women and women of color who are more likely to be poor and dependent on Medicaid for their healthcare coverage because of barriers resulting from historic discrimination and lack of economic opportunity. Poor women are more likely to need abortion-related healthcare. In 2011, women with income below the federal poverty level were more than five times more likely [PDF] to experience an unintended pregnancy than women with an income at or above 200 percent of the poverty rate. In 2014, 75 percent of abortion patients in the US were low-income patients. Most abortion patients state that their main reason for seeking abortion is because they cannot afford to have a child. Abortion is increasingly concentrated among the poor and access to abortion is critical for those in poverty to keep themselves and their families from sliding further into poverty.

The Hyde Amendment targets the rights of poor women for government regulation. The legislation’s drafter, Senator Hyde, was clear that his purpose in proposing the Amendment was to prevent abortion:
“I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately the only vehicle available is the . . . Medicaid bill.”
His comments acknowledge that his measure does not reach rich and poor women equally, but rather that government restrictions on reproductive autonomy falls disproportionately on poor women and their families. As Justice Marshall wrote in his dissenting opinion in McRae, the Hyde Amendment “is designed to deprive poor and minority women of the constitutional right to choose abortion.” Funding restrictions bring into sharp relief that reproductive rights are integrally related to economic injustice.

In the lived experience of poor women and women of color and their families, funding restrictions are the equivalent to an outright ban on abortion. Numerous studies conducted in the years following the Hyde Amendment have provided empirical support for finding that poor women have been forced to carry pregnancies to term for no other reason than that they lacked resources. The Turnaway Study conducted out of the University of California, San Francisco found that among those who sought an abortion but never obtained one, 85 percent reported that the reason was cost [PDF]. Studies have shown that from 18 to 35 percent of Medicaid-eligible women who want abortions, but who live in states that do not provide funding for abortion, have been forced to carry their pregnancies to term. Funding restrictions create extreme hardship for women and families seeking abortion. A study showed that nearly 60 percent of women on Medicaid were forced to use money to pay for abortion that would otherwise be used to pay for living expenses. For more than half of the women in the Turnaway Study who received an abortion, their out-of-pocket expenses exceed one-third of their monthly income. In the same study, 45 percent of the women reported that their abortions were delayed due to raising money for abortion services. Delay in seeking abortion can increase the risk and cost of the procedure. The empirical data of abortion access reveals that funding restrictions have created a two-tiered system of abortion rights in which only those with means can afford to access abortion-related healthcare.

Poverty and Access to Constitutional Rights

The Court has recognized that the fundamental right of privacy includes the right to decide to have an abortion. Many scholars have argued [PDF] that women’s ability to control their reproduction through contraceptives and abortion is a critical aspect of women’s equal citizenship. Access to abortion and contraception allows women to seek education, participate in the workforce, escape abusive relationships, pull one’s family out of poverty, and live life with dignity and autonomy. When seen in this context, funding restrictions are more than simply the state expressing a preference for childbirth over abortion. Rather, the state is creating a barrier that denies the most vulnerable women access to a constitutional right of autonomy that is integrally related to equal citizenship, dignity and autonomy.

Insurance funding restrictions for abortion fail to acknowledge that abortion is essential healthcare. The dissent in Beal v. Doe which upheld state-level funding restrictions for non-therapeutic abortions, described that

“[a]bortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy.”

In a period of rapid healthcare expansion under the ACA, poor women and women of color are being denied access to basic women’s health. Prior to passage of the ACA, 87 percent of private health insurance [PDF] plans covered abortion. The statistics that one in three women of childbearing age has had an abortion highlights how common abortion-related healthcare is in women’s reproductive lives. Instead funding restrictions that exclude abortion from healthcare insurance coverage identify abortion as a constitutional claim but fail to recognize it as healthcare, and women who seek abortion are conceptualized as rights-holders rather than as healthcare consumers. For women who are unable to raise funds to pay for their abortion-related healthcare, the nominal right to decide to have an abortion is an abstract right in the absence of meaningful access to affordable abortion care.

New Legal Strategies

The many challenges facing abortion rights under the current administration, require new legal strategies aimed at addressing access to abortion for poor women and women of color. The movement to repeal the Hyde Amendment is gaining momentum, lead by All Above All. In addition, many reproductive rights and justice advocates are laying the groundwork for broad access to abortion pills, mifepristone and misoprostol, over the counter and by mail. Abortion pills have been available through pharmacies and mail-order for women all over the world but because of tight FDA regulations, U.S. women have not had access to abortion medication [PDF] outside of the clinical context. A study currently underway in four states by Gynuity Health Projects is studying the safety and efficacy of pregnant women receiving abortion medication through the mail after an online or telephone consultation with a healthcare provider. Numerous studies conducted to date have found that abortion medication is safe and effective. A study conducted in Texas [PDF] after one of the most restrictive abortion laws in the country, HB2, the subject of Whole Woman’s Health v. Hellerstedt, went into effect in 2013, revealed that there was a sharp increase in the number of pregnant women who attempted to end their pregnancies on their own outside of the clinical setting. The study put the estimate as high as 100,000 to 240,000 women. Mail-order abortion drugs may be one answer to ensuring access to abortion-related healthcare for women who are poor and lack access to abortion-related healthcare due to cost and access barriers. Medication abortion is safe, effective, less expensive than surgical abortion, and saves the cost and time of travelling long distances to abortion clinics. In light of its safety and efficacy, some researchers are calling for abortion drugs to be available over-the-counter and have suggested calling it “Plan C” in reference to the morning-after pill, RU486 that is sold under the name “Plan B.” Access to medication abortion through the mail or over the counter would dramatically increase access and lower cost for women who do not live in one of the seventeen states that currently offer abortion care under state-funded healthcare systems.

It is critical to consider new legal strategies to ensure abortion access to all pregnant people, especially those who are disproportionately impacted by these funding restrictions. However the recent funding restrictions highlight only one of the many ways in which economic, political, and structural barriers disproportionately deny poor women and women of color access to reproductive rights and justice, not only with respect to abortion, but in all aspects of their reproductive lives. It is equally important to consider the abortion funding restrictions against the backdrop of the lack of support in place for women and their families who carry pregnancies to term, either by choice or because they could not afford an abortion. Social supports such as subsidized daycare, paid family leave and employment protections for pregnancy for many low-wage jobs are effectively non-existent. For women living on welfare, family caps prevent her from obtaining additional resources necessary to provide for a new baby. The passage of HR7 highlights the integral relationship between poverty and abortion access. The lived experience of poor women and women of color since passage of the Hyde Amendment reveals that reproductive justice is inseparable from the quest for economic justice.

Yvonne Lindgren is an Assistant Professor of Law at Indiana Tech Law School. Previously she served as Legal
Fellow at the Center on Reproductive Rights and Justice at UC Berkeley School of Law. She served as co-executive editor on the casebook Cases on Reproductive Rights and Justice co-authored by Melissa Murray and Kristin Luker. Her scholarship in reproductive rights and justice has appeared in Utah Law Review, Hastings Law Journal, Women’s Rights Law Reporter, and her most recent article is forthcomin in Constitutional Commentary.

Suggested citation:Yvonne Lindgren, Impact of the New Abortion Act Passed by the US House of Representatives, JURIST – Academic Commentary, Mar. 1, 2017, http://jurist.org/forum/2017/02/Yvonne-Lindgren-abortion-act.php