Reproductive Rights Prof Blog

Biden's Symbolic Exclusion of the Hyde Amendment Won't Help Native American Women

By K.A. Dilday (June 1, 2021)

On Friday, President Joe Biden released a proposed budget for 2022. Reproductive rights advocates hailed it for the historic exclusion of the Hyde Amendment: It is the first White House budget in decades to exclude the 1976 Amendment prohibiting the use of federal funds for abortion.

The exclusion is largely symbolic: The Hyde Amendment can only be repealed by lawmakers, and Democrats who support repealing it don’t hold sufficient majority in the Senate to do so. But it is a turnaround for Biden who voted to pass the Amendment as a senator and continued to back it for many years. With this latest step, President Biden is signaling that his administration will support the right of reproductive freedom for all women.

Thus, some reproductive rights activists are cautiously optimistic despite the looming specter of the Supreme Court’s hearing next term of a case that could potentially eviscerate the protections of Roe v. Wade. But there is a group of women in the United States that has suffered disproportionately under the Hyde Amendment and therefore to whom symbolic gestures mean little.

Although all low-income women bear the weight of the Amendment’s restrictions as it affects recipients of the federal-state healthcare program Medicaid, non-elderly American Indian and American Native women use public health services at a higher rate than any other ethnicity according to the healthcare research foundation KFF.

While some states have a workaround for abortion services provided by Medicaid—using exclusively state funds rather than federal—many of the U.S. Indigenous population use the federally funded Indian Health Service (IHS) which operates hospitals and outpatient facilities in addition to providing other support services. Approximately 1.9 million American Indian and Alaska Native women living on or near reservations receive care at those facilities and through linked health service providers.

The Hyde Amendment did not technically apply to the Indian Health Services until 2008: As noted by Andie Netherland in the American Indian Law Review,  “...the Hyde Amendment provided that ‘[n]one of the funds contained in [the] Act’ could be used for abortions, [but] the Amendment did not apply, at that time, to the funds allocated to the Indian Health Service through a different act.” In 2008, the Senate expanded the Hyde Amendment’s application to the Indian Health Service.

Despite its not being legally bound by the Hyde Amendment, the Indian Health Service adhered to it in years preceding 2008. A 2002 report by the Native American Women's Health Education Resource Center (NAWHERC) found that between 1981 and 2001, only 25 abortions had been performed by IHS units. The report also cites a 1996 memo from the IHS director clarifying that the IHS would only provide abortions in the case of rape, incest, or limited circumstances when the mother’s life was in danger, the three exceptions permitted under the Hyde Amendment that were pushed through in 1993 under the Clinton Administration.

Reproductive rights activists say that the difficulty of obtaining an exception under the Hyde Amendment is particularly hard on Native American women based on findings that Indigenous women are 2.5 times more likely to report experiencing sexual assault than other races, and one in three Native American women reports having been raped. And, the American Addiction Centers compiled data from the 2018 National Survey on Drug Use and Health indicating that Indigenous Americans have the highest rates of alcohol, marijuana, cocaine, inhalant, and hallucinogen use disorders compared to other ethnic groups.

A recent federal case highlights the particular burden that these challenges and the Hyde Amendment’s restrictions to reproductive rights place on Indigenous women. In the precedent-setting United States v. Flute (2019), the Eighth Circuit reinstated an indictment dismissed by the District Court for South Dakota-Aberdeen against a young Native American woman for manslaughter, after prenatal drug use resulted in the death of her baby four hours after birth. As Eighth Circuit Judge Steven M. Colloton noted in his dissent: “According to the United States Attorney, the government has never before charged a mother with manslaughter based on prenatal neglect that causes the death of a child.”  

Flute gave birth on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate Tribe, which is under federal jurisdiction. Her case was characterized by the Harvard Law Review as escalating “to the federal level the state judicial trend of using broad interpretations of statutes designed for other purposes to criminalize prenatal conduct.”  As Judge Colloton also wrote in his dissent: "No federal statute enacted after 1909 has expanded the manslaughter statute to encompass a mother’s prenatal neglect." In an article about the Flute case in the most recent edition of the American Indian Law Review, Andie Netherland noted that pregnant Indigenous women who face addiction may face criminal prosecution for involuntary manslaughter “more frequently than non-Indian women due to the unavailability of abortion services within the Indian Health Service.”

For these reasons, Native-American reproductive rights activists say that even post Roe v. Wade, the immediacy of their fight for reproductive justice and self-determination never changed. A 2019 article in Indian Country Today noted “the new abortion laws don’t ever have to be implemented and the Supreme Court doesn’t have to overturn Roe to make abortion inaccessible for Native women; restrictions are nothing new. For Native women, the lack of access to abortions has been real for years.”  

The looming loss of reproductive rights feared by many in the United States would not be a loss but a reiteration of the status quo for many Indigenous women. In the absence of real, tangible change, the symbolic exclusion of the Hyde Amendment does not give Indigenous women much cause for celebration. 

 

New Bill to Classify Reproductive Rights as Human Rights

Rewire.News (Mar. 7, 2019): Here's How Democrats Want to Classify Reproductive Rights as Human Rights, by Katelyn Burns:

The Trump administration's State Department deleted reproductive rights from its human rights report last year. Now, Congressional Democrats have introduced a bill that would require the inclusion of reproductive rights--by way of an accounting of "access to reproductive health care"--in the report.

"The 'Reproductive Rights Are Human Rights Act' was introduced by Democratic caucus vice chair Rep. Katherine Clark (D-MA) and announced at a press conference Thursday [March 7, 2019] along with Rep. Barbara Lee (D-CA) and U.S. Senate co-sponsors Bob Menendez (D-NJ) and Richard Blumenthal (D-CT)."

Representative Clark said:

The way that we are able to protect human rights internationally is through shining a light on the violations. I think what this administration is saying is that we are no longer interested in finding out what is happening with women’s health and monitoring, assessing and protecting women across the globe.

The State Department's annual human rights report is of critical important to the our government, notes Amanda Klasing, acting co-director of the women’s rights division at Human Rights Watch. Congress uses this report in determining appropriations pertaining to foreign assistance, and immigration judges likewise rely on the report in making decisions about pending asylum claims. 

If a woman crosses the border from El Salvador claiming asylum in the United State because she is threatened with jail time in her home country for having a miscarriage, for example, an immigration judge might look to the human rights report to determine whether this is a credible basis on which she may claim asylum.

The information that used to be included on the report was gathered by foreign service officers who had established relationships with health care providers and advocates around the world. These relationship no longer exist under the current administration. Not only is the information foreign service officers previously gathered lost, the contacts that enabled substantial, accurate reporting are gone.

"There will be a minimum of a year or two years for embassies to rebuild meaningful relationships where they can actually be substantially reporting on what’s happening," said Stephanie Schmid, U.S. foreign policy council at the Center for Reproductive Rights (CRR).

Since the deletion of reproductive rights from the report, the CRR has twice sued the State Department under the Freedom of Information Act in an effort to access documentation about the erasure. The newly-proposed bill "mandates that foreign service officers must consult with reproductive health and rights organizations in local communities to gather accurate information for the human rights report."

Advocates for reproductive rights hope this bill will solidify the importance of including reproductive rights among human rights generally.

'There is a sense that there are hard human rights issues and then there are soft human rights issues,' Klasing said. 'The State Department is still reporting on the hard human rights issues like torture, extrajudicial killings, but there’s some flexibility as to whether or not these [reproductive rights] actually qualify as human rights. As somebody who has interviewed both people who have been victims of state sponsored violence, torture, abuse, and people who have had their reproductive rights violated, the feeling of abuse, the feeling of violation is the same. It’s a visceral feeling.'

What the Election Results Mean for Abortion in America

The Cut (Nov. 8, 2018): What the Election Results Mean for Abortion in America, by Irin Carmon:

"Tuesday’s results were messy and contradictory, just like the current reality of reproductive rights," writes Irin Carmon for The Cut.

With federal courts failing to protect abortion access, it will be up to the states to give and take away. “We made huge gains at the state level, which is going to be crucially important as we face the post-Roe reality,” says NARAL president Ilyse Hogue. Exit polls showed broad support for Roe v. Wade, but Republican voters in states like Indiana and North Dakota were motivated by Brett Kavanaugh’s nomination to vote Republican.

First, the bad: the Senate and the federal judiciary "are gone." Republicans took a firm majority in the Senate, which has the sole authority to select federal judges and Supreme Court justices. Should Donald Trump have the chance to make another pick for the Supreme Court justice, writes Carmon, "the impact would be catastrophic."

Plenty of damage has and still can be done by Trump-controlled federal agencies, too. Earlier this week, the Department of Health and Human Services issued rules to limit abortion coverage on insurance plans on the exchange and to grant employers broad ability to opt out of including birth control in their plans.

But the good news is that without Republican control of the House, no major legislation restricting access to contraception or birth control — including defunding Planned Parenthood or a ban on abortion at 20 weeks — is likely to go anywhere.

At the state level, pro-choice Democrats didn’t lose a single governor’s seat and actually picked up seven seats. Former governors in some of the those states — like Kansas, Michigan, and Wisconsin — were zealous in limiting abortion access, making the replacements especially significant. Blue states also saw a total of 300 state legislature seats flipping Democratic, paving the way for stronger protections for abortion access.

In New York, eight state Senate seats went to Democrats, after a concerted campaign highlighted Republican opponents’ refusal to a Reproductive Health Act that would safeguard abortion liberty in New York in the event that Roe v. Wade is overturned. Democrats now control the New York State Senate for the first time in a decade.

Some Republican supermajorities, which can override vetoes, were shrunk to simple majorities. Perhaps most promisingly, pro-choice champions won in red states, like Colin Allred in Texas. In Orange County, California, 31-year-old Katie Hill, who spoke openly about how her miscarriage at 18 had informed her support for reproductive freedom, bested the anti-abortion Steve Knight.

Abortion May Be Mobilizing More Democratic Voters Than Republicans Now

FiveThirtyEight (Oct. 31, 2018): Abortion May Be Mobilizing More Democratic Voters Than Republicans Now, by Daniel Cox:

Two new surveys reveal a remarkable shift in how important the issue of abortion is to Democrats and Republicans ahead of the 2018 midterm election this Tuesday, November 6.

A recent PRRI survey found that nearly half (47 percent) of Democrats said abortion is a critically important issue to them personally; 40 percent of Republicans said the same. That represents a dramatic swing since 2015, when 36 percent of Democrats and 43 percent of Republicans said abortion was a critical concern. Democrats are almost twice as likely today as in 2011 to rate the issue as critical.

Meanwhile, a recent Pew poll showed that abortion is a far more central voting concern for Democrats today than it has been at any point in the last decade — 61 percent of Democratic voters said abortion is very important to their vote this year. In 2008, only 38 percent of Democratic voters said the same.

Brett Kavanaugh’s confirmation to the Supreme Court appears to have elevated the perceived threat level to the right to abortion. A PRRI poll conducted during Kavanaugh's confirmation process found that nearly two-thirds of Democrats believed that Kavanaugh would vote to overturn Roe v. Wade. Another likely reason for the rising concern among Democrats, Cox reasons, is the years-long campaign to curb abortion access at the state level. 

Cox also finds that reproductive health care has taken a more central place in the Democratic agenda as women, particularly young women, have taken on more prominent roles in the party. Many Democratic women, Cox writes, see abortion access as inextricably linked to the financial security and autonomy of women.

However, polls show that when most Democrats make voting decisions, they still weigh the issue against a host of competing concerns, such as other health care issues and the environment. It is not a litmus-test issue for most Republican or Democratic voters. Only 21 percent of Republicans and 30 percent of Democrats say they would only ever support a candidate whose views on abortion align with their own, according to a PRRI poll.

Democrats are likely to continue to prioritize abortion so long as its legal status appears to be threatened and access to it is limited. This may mean that fewer Republicans campaign on their explicit opposition to abortion, at least in the short-term. Conservative Christians, who have worked for decades to overturn Roe, have been conspicuously tight-lipped about abortion in recent months, indicating that they are worried about the possible political fallout of discussing their views. The 2018 election will show if that strategy comes too late and the abortion issue has given Democratic voters another reason to head to the polls.

 

Abortion Is on the Ballot in These States Next Week

Rewire.News (Nov. 1, 2018): Abortion Is on the Ballot in These States Next Week, by Lauren Holter: 

Midterm voting is already well underway throughout the country with election day officially falling on Tuesday, November 6. While the citizenry waits to see whether Republicans or Democrats will next control their state legislatures, next week's elections will also implicate specific issues in addition to deciding our leaders. Abortion rights are on the ballot in Alabama, Oregon, and West Virginia. 

Alabama's ballot measure proposes "personhood" rights for fetuses, which could criminalize access to certain contraceptives or in vitro fertilization. The measure, if passed, would act as a "trigger ban"and would completely outlaw abortion under the circumstances of a post-Roe world. Similar ballot measures have previously been proposed--and failed--in Colorado, Mississippi, and North Dakota. Republican legislators in Alabama want the state Constitution to explicitly elevate the rights of unborn fetuses over any right to an abortion. The Amendment does not include any exceptions to a prohibition on abortion--not even in the cases of threat to the mother's life. 

In West Virginia, the No Constitutional Right to Abortion Amendment also aims to update their state Constitution. Lawmakers wish for the text to explicitly assert that nothing in the instrument protects the right to or funding for an abortion. The state already has a pre-Roe abortion ban that remains on the books, which would enter into force should Roe v. Wade be overturned, criminalizing abortion and punishing providers with imprisonment. The new Amendment proposal focuses on eliminating Medicaid funding for abortions. Medicaid currently covers "medically-necessary" abortions in West Virginia. While the Amendment does include exceptions for cases of rape, incest, fetal anomaly, or threats to life, opponents are particularly concerned that the new restriction would disproportionately harm low-income patients who do not qualify for exemptions. 

Finally, the proposal in Oregon, called Measure 106, "would prohibit public funds from paying for abortions in Oregon except in cases of rape, incest, ectopic pregnancies, or a threat to the pregnant person’s health." Public employees and people on Medicaid would lose access to abortion as well. This measure would specifically override the Reproductive Health Equity Act, which Oregon passed last year to guarantee cost-free access to abortion and reproductive health services.

In the era of a Kavanaugh Supreme Court, advocates are particularly zealous about preemptively protecting abortion access on the state level, and those involved in these three states' campaigns are no exception. 

House Republicans Jam ‘Personhood’ Language Into New Tax Bill

Rewire.News (Oct. 1, 2018): House Republicans Jam ‘Personhood’ Language Into New Tax Bill, by Katelyn Burns: 

The U.S. House of Representatives last week passed a bill that would extend "the ability to count 'unborn children' as beneficiaries under 529 education savings plans."

The bill, referred to as the Family Savings Act, is a part of a current push for updated tax legislation. Anti-choice activists have promoted the addition of personhood language--effectively defining zygotes, embryos, and fetuses as persons with all the rights that entails--to legislation for some time. The cause is now embraced by many Congressional Republicans as well.

"Personhood laws" have consistently been rejected in ballot measures across the country. 

Representatives and activists alike warn lawmakers to be vigilant of the tactic of sneaking anti-choice provisions into larger bills. “This is how extremist views creep into the mainstream," said Rep. Diana DeGette (D-CO). "Provisions like this one should never become law—they can lead to limits on access to abortion and even birth control.”

Supporters of the legislation--personhood language and all--claim that it will "finally" allow expectant parents to begin saving for their future child's education through a 529 plan. Parents-to-be, however, "can already open a 529 plan listing themselves as the beneficiary before switching it over to the child once they are born."

The Family Savings Act is not expected to pass in the Senate ahead of the midterms, but this is not the first time--and surely not the last--lawmakers have tried to slip similar provisions into tax reform or other legislation.  

How safe are abortion rights in New York if Brett Kavanaugh is confirmed?

Albany Times-Union (Sept. 18, 2018): How safe are abortion rights in NY if Kavanaugh is confirmed?, by Bethany Bump:

New York legalized abortion in 1970, becoming the second state in the United States to broadly legalize abortion care and the first state in the nation to legalize it for out-of-state residents.

At the time, the law was seen as liberal, but no longer, according to legal scholars and experts. As confirmation hearings for Brett Kavanaugh proceed in the U.S. Senate and the fate of Roe v. Wade hangs in the balance, New York's abortion laws have received increased attention at the state and local level.

"There has been a dramatic increase by states in the last decade to try to test the boundaries of the nation's abortion law, and it seemed to be in anticipation of changes on the Supreme Court," said Andy Ayers, director of Albany Law School's Government Law Center.

Though a common assumption is that New York is generally safe from federal rollbacks on progressive issues, a policy brief authored by Ayers and published last week by Albany Law School and the Rockefeller Institute of Government highlights exactly why that might not be the case when it comes to abortion rights.

Under New York penal law, abortion is technically a crime. The 1970 law that legalized abortion simply made the procedure a "justifiable" crime under two specific circumstances: when it is performed within 24 weeks of conception or when it is performed to save a woman's life. The law contains no health exception or any other exception (such as when the fetus is nonviable) from the 24-week restriction. However, the Supreme Court later ruled in Roe and in Planned Parenthood v. Casey that denying a health exception or forcing women to carry nonviable fetuses to term constitute unconstitutional restrictions on access to abortion care.

In 1994, the New York Court of Appeals wrote that "the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our state constitution, is at least as extensive as the federal constitutional right," and went on to cite both Roe and Casey. 

"In lawyer terms, this was 'dicta,' meaning non-binding," said Ayers, who is an adviser to the Rockefeller Institute's Center for Law and Policy Solutions. "But to me, it's very, very hard to imagine that our Court of Appeals would find it permissible to restrict abortion in a way that Roe would not have allowed."

Although legal experts agree it's unconstitutional for New York to deny late-term abortions to women to protect their health or when the fetus is nonviable, those exceptions remain a gray area to some medical professionals.

The law governing abortion in New York exists within the state's penal code, meaning violators could face criminal punishment rather than civil liability. Some doctors in New York have urged some patients to seek a late-term abortion in another state.

The Reproductive Health Act, a bill that was introduced in the state Legislature in 2017 to bring New York's abortion law in line with Roe and Casey, would lessen this effect by moving abortion statutes out of state penal law and into the state's public health law. It would also expand the types of medical professionals allowed to perform abortions to include nurse practitioners and physician assistants.

As President Donald Trump prepared to announce Brett Kavanaugh as his Supreme Court nominee this summer, and amid pressure on the left from Democratic primary opponent Cynthia Nixon, Governor Andrew Cuomo spoke out against Republican state senators who have refused to pass the bill.

Other states have had better luck amending their abortion laws as the ideological makeup of the Supreme Court faces its most significant shift since the Second World War. Massachusetts recently amended its laws to bolster abortion protections, while at least fifteen states have passed laws in recent years that would prohibit abortion should the Supreme Court overturn Roe.

"If a significant number of other states start prohibiting abortion or making it hard to access," Ayers said, "we may see people come into New York to get abortions again, just like they did in the '70s."

This past Thursday, the New York City Council Committee on Women, chaired by Council Member Helen Rosenthal, held a hearing on the current status of reproductive rights and access to abortion services in New York City. The Committee heard Council Resolution 84, introduced by Public Advocate Letitia James, Council Member Rosenthal, and Council Member Justin Brannan, which urges the State Legislature to pass, and the Governor to sign, the Reproductive Health Act. Abortion rights advocates testified at the hearing, including Cynthia Soohoo, Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law. More information about the hearing, including video of the hearing, can be found here.

Is the Anti-Abortion Movement Just Applied Anti-Feminism?

Daily Intelligencer (Sept. 20, 2018): Is the Anti-Abortion Movement Just Applied Anti-Feminism?, by Ed Kilgore:

Kilgore writes for New York Magazine's Daily Intelligencer responding in part to conservative Ross Douthat's New York Times piece claiming that the current allegations of sexual assault against Supreme Court nominee Brett Kavanaugh are harmful to the "pro-life" movement. 

Kilgore says that despite the arguments of many anti-abortion activists that their purported moral high ground turns on fetal personhood or the rights of the unborn, "the prevailing sentiment among abortion rights activists is that the anti-abortion movement is just applied misogyny." 

Anti-abortion work generally is rooted in a position that elevates the patriarchy and promotes "fear of women's sexuality and autonomy."

Kilgore highlights that Douthat interestingly links anti-abortion work with anti-feminism. Douthat is concerned that confirming Kavanaugh amidst the #metoo movement generally and his allegations of sexual assault specifically might "cement a perception that’s fatal to the pro-life movement’s larger purposes — the perception that you can’t be pro-woman and pro-life."

Even if many Republicans (in particular, Republican women) have identified with the labels pro-woman and pro-life, there is no longer any Republican party-wide commitment to the pro-woman side of the pairing, Kilgore says. 

Ross Douthat is right to worry that it’s getting harder every day to disassociate pro-life from anti-woman views. It’s certainly getting harder for me to believe that anti-abortion activists care more about saving embryos than about shackling women.

Kavanaugh 'abortion-inducing drug' comment draws scrutiny

CNN (Sept. 7, 2018): Kavanaugh 'abortion-inducing drug' comment draws scrutiny, by Ariane de Vogue & Veronica Stracqualursi:

Brett Kavanaugh's views on birth control drew scrutiny on Thursday as abortion rights advocates charged that the Supreme Court nominee referred to contraceptives as "abortion-inducing drugs."

The controversy came as Kavanaugh discussed Priests for Life v. HHS, a case involving the application of the Religious Freedom Restoration Act (RFRA) to the Affordable Care Act in which Kavanaugh wrote a dissenting opinion. The government's regulations included a requirement that all employers provide their employees with health insurance that covers all forms of FDA-approved birth control, including birth control pills, IUDs, and hormonal injections. In his dissent, Kavanaugh expressed sympathy for the religious challengers.

Asked about the case by Senator Ted Cruz (R-TX), Kavanaugh said he believed "that was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees. And under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on the religious exercise? And it seemed to me quite clearly it was."

"It was a technical matter of filling out a form in that case," he continued. "In that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objected to."

Although no senators present at the hearing questioned Kavanaugh's usage of the term "abortion-inducing drugs," abortion rights advocates said Kavanaugh mischaracterized the case and also used a controversial term used by groups opposed to abortion.

"The argument for the lawyers of Priests for Life was that they objected to all birth control," Beth Lynk, a spokeswoman for Planned Parenthood Federation of America, said in a statement. "In Kavanaugh's testimony his description of their objection characterized all types of birth control as 'abortion inducing drugs.'"

 

"In reaching for a term to describe all types of birth control, the word he chose was 'abortion inducing drugs,"' she said.

 

"Saying 'abortion-inducing drugs' to describe contraception is straight out of the anti-choice, anti-science phrase book used to restrict women's access to essential health care," the Center for Reproductive Rights said on Twitter Thursday.

 

Kavanaugh used similar language to answer on Thursday to describe the Priests for Life position in his 2015 dissent.

 

"By regulation, that insurance must cover all FDA-approved contraceptives, including certain methods of birth control that, some believe, operate as abortifacients and result in the destruction of embryos," he wrote.

 

336 Law Professors Write Letter Opposing Kavanaugh's Nomination

Law professors around the country joined together in penning a letter to Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) urging them to vote "no" on Kavanaugh's Supreme Court nomination. 

The letter highlights the imminent danger to reproductive health should Kavanaugh be confirmed.  He would be expected to vote in support of efforts to overturn long established reproductive-rights precedents like Roe. Although Kavanaugh has publicly stated his support for stare decisis, the authors note that justices who support precedent do not always shy away from overturning it.

The overturning of Roe or Casey--both of which upheld the right to choose and based their decisions on the importance of protecting the principle that "matters involving the most intimate and personal choices a person may make in a lifetime...are central to the liberty protected by the Fourteenth Amendment"--could also implicate harmful shifts in the subsequently upheld rights to privacy relating to parenting, family planning, and same sex relationships. 

In 1965, the lawyers cite, "illegal abortion in the United States accounted for 17% of all deaths attributed to pregnancy and childbirth." As officially reported numbers, the actual mortality rate due to illegal abortion was likely much higher. 

The threat to reproductive health and freedom is particularly acute for women of color, poor women, and rural women, the attorneys point out, citing disparate access to quality medical care based on racial and class lines as well as the heightened maternal mortality rate for black women. 

The letter states that women in Maine and Alaska in particular may be heavily affected, as both states are large and have "widely dispersed populations, creating challenges for health care." 

In conclusion, the authors write: 

A "no" vote is necessary to protect women and families throughout this country. We urge you, as Senators who have long supported the right to choose, to make your legacy the protection of these fundamental constitutional rights for generations to come. 

Kavanaugh comments on abortion to be parsed in confirmation hearings

ABC News (Sept. 3, 2018): Kavanaugh comments on abortion to be parsed in confirmation hearings, by Stephanie Ebbs:

Brett Kavanaugh testifies at his Supreme Court confirmation hearings Tuesday, and nothing will be parsed more closely than his first public comments on abortion.

Senate Democrats are expected to grill Kavanaugh on the Supreme Court's abortion jurisprudence and access to contraception.

Abortion rights groups will be listening to how Kavanaugh responds when asked if he agrees with President Trump's comments that Roe v. Wade should be overturned and what Kavanaugh meant when he described Roe as "settled law."

During his 2006 confirmation hearing for the federal bench, Kavanaugh committed to following Roe v. Wade but would not comment on his personal opinion of abortion. "The Supreme Court has held repeatedly, senator, and I don't think it would be appropriate for me to give a personal view of that case," Kavanaugh told Sen. Chuck Schumer at the time.

Over the weekend, Sen. Lindsey Graham, the South Carolina Republican who sits on the Senate Judiciary Committee, said he hopes Kavanaugh is open to both sides of any case challenging Roe, including that the decision should be overturned. In an interview, Graham said he would consider Kavanaugh "disqualified" if he promised only to uphold or overturn Roe v. Wade.

Republican Senator Susan Collins of Maine, has said she won't vote for a justice  "hostile" to Roe v. Wade. But after meeting with Kavanaugh earlier this month, she said he had called Roe "settled law."

Even if Kavanaugh is not in favor of overruling Roe v. Wade, there is evidence that he would interpret the right to abortion narrowly. Last year, Kavanaugh dissented in a court decision that allowed an undocumented minor in U.S. custody to get an abortion. He argued that the government could force the minor to wait until she was transferred from a government-run immigration center to a sponsor before having the abortion. Kavanuagh argued that the delay did not constitute an "undue burden" because other laws regarding abortion can cause similar delays.

Abortion rights advocacy groups want Kavanaugh, or any other Supreme Court nominee, to affirmatively support the "personal liberty standard" and say as well that the Constitution protects an American's right to decide to use contraception, have an abortion, or marry same-sex partners.  But, Kavanaugh is unlikely to make such a statement and has publicly expressed misgivings about such liberty rights.

In his dissent to the Roe v. Wade, Justice William Rehnquist wrote that the framers of the Constitution did not intend for the 14th Amendment to overrule states' ability to write their own laws about abortion because there were state laws regulating it at the time.  In a speech at the American Enterprise Institute last year Kavanaugh said that while Rehnquist couldn't convince the other justices he succeeded in "stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition."

Battle lines drawn over abortion ahead of Trump's supreme court pick

The Guardian (Jul. 8, 2018): Battle lines drawn over abortion ahead of Trump's supreme court pick, by Ed Pilkington:

Battle lines have been drawn over the future of abortion in America on the eve of President Donald Trump’s nomination of a second justice to the U.S. Supreme Court that could put Roe v. Wade in jeopardy.

Trump has said he will announce his nominee for the seat in a characteristic display of political braggadocio on primetime TV at 9pm ET on Monday night (July 9). On Sunday there was no indication that he had yet made his decision, as speculation continued to swirl around the shortlist for the appointment.

Both sides in the increasingly acrimonious dispute took to the Sunday political talk shows at the start of what promises to be an epic tussle over the ninth seat on the nation’s highest court. The position will be left vacant by the retirement of Justice Anthony Kennedy, 81, who had acted as the swing vote on many critical issues including abortion.

In the course of the 2016 election, Trump made changing the face of the Supreme Court a key campaign pledge that was instrumental in firing up his base of right-wing conservative voters. In the presidential debates he vowed to appoint only Justices committed to “automatically” overturning Roe.

Now, key players in the appointment are reining back on the suggestion that the newly-composed court will target the pro-choice ruling and re-criminalise the practice. Leonard Leo, the vice president of the conservative Federalist Society who selected Trump’s longlist of 25 candidates for the Supreme Court, told ABC’s This Week that warnings about Roe v Wade were a “scare tactic." Leo said that it was impossible to predict the positions of any of the leading candidates for the seat on abortion. “Nobody really knows,” he said. “We’ve been talking about this for 36 years going all the way back to the nomination of Sandra O’Connor, and after that you only have a single individual on the court who has expressly said he would overturn Roe.”

Trump is known to have interviewed at least seven candidates for the post, all drawn from the Federalist Society longlist. Of those, the shortlist is understood to have boiled down to four judges from various US Courts of Appeals– Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, and Raymond Kethledge.

Of those individuals, Barrett is considered to have the most hard-line record opposing abortion rights, but that could cause problems among more moderate Republicans in the Senate, notably Susan Collins of Maine, who is already the target of ads being put out by pro-choice groups.

The New York Times on Sunday reported that Senate Majority Leader Mitch McConnell was strongly urging Trump to opt for either Hardiman or Kethledge on grounds that the other two might be impossible to get confirmed. While Barrett is problematic on the abortion issue, Kavanaugh is unpopular among some Republican senators because of his track record as staff secretary under President George W. Bush.

Democrats and pro-choice groups stepped up their rhetoric on Sunday over the danger of Trump’s second pick. Richard Blumenthal, Democratic senator from Connecticut, told ABC’s This Week that it posed a fundamental threat to abortion rights. “This next nomination will be the swing vote to overturn Roe v. Wade and equally important to eviscerate the protections of millions of Americans who suffer from existing conditions and other healthcare rights along with workers’ rights, gay rights, voting rights.”

Trump emphasizes importance of 2018 victories to anti-abortion group

May 22, 2018 (CBS News): Trump emphasizes importance of 2018 victories to abortion-opposing group, by Kathryn Watson: 

Speaking to the anti-abortion Susan B. Anthony List ("SBA List") at that organization's 11th Annual "Campaign for Life" Gala Tuesday night in Washington, D.C., President Trump emphasized the importance of the 2018 midterm elections. The president's remarks come shortly after his administration announced it intends to pull federal funding from health facilities that make referrals to abortion clinics.

"We must work together to elect more lawmakers who share our values," he said to the audience.

The federal funding rule change is being cheered by many anti-abortion activists and lawmakers, as it will pull funding from groups like Planned Parenthood. The move, White House press secretary Sarah Sanders said last week, "would ensure that taxpayers do not indirectly fund abortions." Critics of the administration and of anti-abortion policies say the change could seriously restrict funding for essential women's health services like cancer screenings.

"My administration has proposed a new rule to prohibit Title X funding from going to any clinic that performs abortions," Mr. Trump said Tuesday night, to applause from his audience. 

The SBA List raises funds for federal candidates who oppose legal abortion. Vice President Mike Pence spoke to the group last year. The SBA List hasn't always supported Mr. Trump. Before he was nominated, the group urged voters to look elsewhere within the GOP for its 2016 champion, and called Mr. Trump "unacceptable."

On Tuesday night, SBA List president Marjorie Dannenfelser said the upcoming midterm elections are important, and that Roe v. Wade must be overturned.

Millennials have a surprising view on later-term abortions

Washington Post (January 31, 2018): Millennials have a surprising view on later-term abortions, by Eugene Scott:

This past Monday, the United States Senate voted to block a proposed 20-week ban on abortion care approved by the House of Representatives. A Quinnipiac poll from January 2017, however, may reveal the unpopularity of later-term abortion with millennial voters. At the very least, Scott posits, the controversy around later-term abortion will continue into the next generation.

The poll found that 49 percent of respondents ages 18 to 34 would support a ban on abortions after 20 weeks of pregnancy. Only individuals aged 35 to 49 responded more favorably to a proposed ban. The survey found that 35 percent of millennials think abortion should be legal in all cases, while 9 percent of millennials think abortion should be illegal in all cases.

The Senate voted 51 to 46 on a procedural hurdle, falling short of the 60 votes needed. Democratic senators like Angus King (I-ME) explained that more than 99% of abortions in the United States take place before 20 weeks, and that the proposed ban is "a solution in search of a problem."

Young anti-choice activists hope that an opposition to later-term abortion care will resonate with a wide swath of young voters. Maria, Lebron, a 19-year old student at Catholic University, hopes to shift the anti-choice movement away from its religious and political affiliations to a movement that emphasizes standing for "the baby" and for "the mother." "It cannot only be focused on the unborn," Lebron says.

The culture battle over abortion isn't over, Scott argues, and 45 years after Roe v. Wade, millennials show little sign of resolving the issue.

4 Ways the Senate Health Care Bill Would Hurt Women

TIME (Jun. 22, 2017): 4 Ways the Senate Health Care Bill Would Hurt Women, by Amanda MacMillan

The newly unveiled Senate health care bill intended to repeal the Affordable Care Act has a name: the Better Care Reconciliation Act of 2017. The Senate bill looks very similar to the American Health Care Act passed by the House of Representatives earlier this year, with a few changes. What hasn't changed much is the debilitating effects the legislation could have on women and families, and especially low-income Americans and those with pre-existing conditions.

Under the Senate plan, women could lose essential benefits like cervical cancer screenings, breast pumps, contraception, and domestic violence screening and counseling, and prescription drug coverage could be severely limited. The bill also slashes Medicaid, which currently funds half of all childbirths in the United States, and includes language that allows states to impose employment requirements for Medicaid eligibility.

The Senate plan eliminates Medicaid reimbursements to Planned Parenthood for one year, which would further limit access to essential services like well-woman visits, cancer screenings, and STI testing. Finally, the Republican plan repeals the individual mandate and the requirement that employers with 50 or more employees provide health coverage. Without these requirements, many women will lose their health insurance and face unique challenges, particularly regarding childbirth. With the U.S.'s maternal mortality rate already the highest among the developed world, both the House and Senate bills are likely to make a bad problem worse.

 

Attack on Federal Funding for Planned Parenthood

New York Times (Apr. 14, 2017): Voiding Obama Rule, Trump Signs Law Taking Aim at Planned Parenthood, by Julie Hirschfeld Davis:

At the end of his term, President Obama, responding to a spate of red state initiatives to defund Planned Parenthood, promulgated a regulation banning states from withholding federal funding for family planning only if the provider is unable to provide family planning services.  The mere fact that a family planning provider performed abortions was not reason enough for withholding funds.  A new law, the tiebreaker vote on which was cast by Vice-President Mike Pence, guts this late-term regulation.  Under the law, states may cut the federal funding of groups that perform abortions.  The law takes a step further the already existing ban on using  federal government money for abortion except in cases of where a woman's life is at stake or the pregnancy was the result of rape or incest.

President Trump, who signed the law yesterday, is an opponent of abortion.  Early in his term he reinstated a regulation blocking federal funding for any nongovernmental organizations worldwide that provide abortion counseling.    

Anti-abortion conservatives have been cheered by Trump's actions and foresee further legislative activity that will withdraw public support of family planning that includes abortion. 

The Commerce Clause and Restrictions on Abortion

Reacting to how restrictive abortion laws block low-income women's access to reproductive health care and force them across state borders, Kaiya Lyons's article in the Thurgood Marshall School of Law Journal on Gender, Race, and Justice develops the theory that Congress's power to regulate commerce vests it with the authority to invalidate such laws.  The abstract follows. 

The Supreme Court has consistently held that the right of a woman to choose to have an abortion before viability and without undue burden should be preserved. However, the ability of a woman to exercise that right today is as intimately connected to her economic privilege and geographic location as it was in the days preceding the Court's landmark ruling in Roe v. Wade. As a result of the great deference assigned to state legislatures by Roe and its progeny, increasingly restrictive abortion laws have been enacted across the country that obstruct low income women's access to reproductive health care.

This article seeks to outline how the "seismic shift" in reproductive rights law since the 2010 midterm election forced women to travel into other states to receive abortions, and thus created the very interstate market that would allow Congress to invalidate such laws under the Commerce Clause. While unlikely in the current political climate, such a legislative effort could effectively circumvent the ability of the Supreme Court to further narrow its abortion jurisprudence. This article argues that federal action is necessary to protect the rights of low income and economically vulnerable women for whom abortion is a vital piece of comprehensive reproductive health care.

New Stategies Set in Motion to Dismantle Abortion Liberty

National Public Radio (July 20, 2016): Anti-Abortion Groups Take New Aim with Diverse Strategies, by Julie Rovner: 

In the wake of the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, anti-abortion forces are reconsidering whether the strategy they have pursued for the last several years was ill-conceived.  A new strategy among some groups is to lobby legislatures, at both the federal and state levels, to ban abortion after roughly twenty weeks of pregnancy and to ban all dilation and evacuation abortions.  A federal bill to this effect passed the House but was defeated in the Senate.

But some anti-abortion groups want to continue fighting for TRAP (targeted regulation of abortion providers) laws and remain convinced that there is a way to formulate such laws that will pass constitutional scrutiny.  Thus, the anti-abortion movement is currently divided into two camps, those who want to continue the battle to shut down abortion care clinics in the guise of fighting for women's health, and those who desire a renewed focus on banning abortion outright.    

Anti-abortion forces remain convinced that they are winning the fight, despite recent setbacks and despite the social justice leanings of the up and coming generation of millennials.  They view the question of who will inhabit the White House come next January as the factor that will be the most decisive in the short term.  

House Energy and Commerce Committee Creates Subcommittee to Investigate Planned Parenthood

Jezebel (Oct. 6, 2015): Toot Toot! All Aboard the Crazy Train! Congress Has Big Plans for Planned Parenthood, by Anna Merlan:

The House’s Energy and Commerce Committee voted just now to convene a special, thirteen-member subcommittee to investigate PP...The resolution from the committee says the subcommittee will be investigating “medical procedures and business practices used by entities involved in fetal tissue procurement,” as well as “the practices of providers of second and third trimester abortions, including partial birth abortion and procedures that may lead to a child born alive as a result of an attempted abortion.”

Merlan explains that the whole House will vote tomorrow on whether or not to create the committee. Merlan quotes Dawn Laguens, an Executive Vice President of Planned Parenthood, who states: “This is now a five-ring circus — and counting. This would be the fifth committee to launch an investigation based on false claims that have been totally discredited.”

Many Health Insurers Not Complying with Federal Contraception Rule

The New York Times: Insurers Flout Rule Covering Birth Control, Studies Find, by Robert Pear:

Health insurance companies often flout a federal requirement that they cover all approved methods of birth control for women without co-payments or other charges, a major benefit of the Affordable Care Act, two new studies have found.

Responding to the reports, senior Democratic members of Congress prodded the White House on Wednesday to step up enforcement of the requirement. . . .