A few Saturdays ago, on November 7th, we were at the annual SisterSong meeting, a gathering of about 300 reproductive justice advocates. What was exhilarating and unusual about this meeting was that the vast majority of people attending were women of color who are focused on gender and sexuality issues. This was a fantastic event that showcased and harnessed the power of women of color, a group often portrayed as politically and socially marginalized.
At the same time, the House was considering and voting on the now-infamous Stupak-Pitts Amendment to the health care reform bill. Stupak-Pitts bars the use of federal funds to pay for abortions, whether through a public option, or through federal subsidies to private insurance plans offered through an insurance exchange. While that, in and of itself, is extremely limiting and dangerous, the amendment goes even further—it bars the use of federal funds to “cover any part of the costs of any health plan that includes coverage of abortion.” Essentially, the amendment bars any insurance plan operating in the health care exchange from offering abortion services.
Under Stupak-Pitts, insurance companies could offer “separate supplemental coverage for abortions,” also known as an abortion rider. However, the reality is that, without financial incentives and given the risk of becoming targets of anti-choice advocates, how many insurance companies are going to take this extra step? And how many women are going to plan ahead for a possible need for an abortion by buying a special rider? According to the Guttmacher Institute, nearly half of pregnancies among American women are unintended, and 40% of these are terminated by abortion. Beyond the absurd notion that women will plan for an unplanned pregnancy, who wants to go on the record and have information in their medical histories indicating they actually sought out abortion coverage?
Being at a conference for women of color while this was going on only heightened the stark realities of what was at stake. The reproductive justice movement has done the difficult and important work of pointing out that rights around reproduction and sexuality go far beyond abortion. The movement focuses on a broad agenda ensuring that all people have the economic, social, and political capital to make healthy decisions about their bodies, sexuality, and reproduction for themselves, their families, and their communities. But by no means does this mean that access to abortion is no longer an important part of the reproductive justice agenda.
In fact, access to abortion is a critical issue for women of color and low- and middle-income women. The Guttmacher Institute notes that 54% percent of women who have abortions had used a contraceptive method (usually the condom or the pill) during the month they became pregnant. Sixty-nine percent of pregnancies among Black women are unintended, as are 54% among Latinas. Moreover, women of color are deeply affected by the need for abortions: 37% of abortions occur to Black women, and 22% to Latina women. Finally, the abortion rate among women living below the federal poverty level is more than four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women).
The passage of Stupak-Pitts has created an uproar in the feminist blogosphere and among reproductive justice/rights advocates, who are engaged in a battle to beat this back in the Senate. And people want to know whether this thing has legs, from a legal perspective. Would Stupak-Pitts withstand a Constitutional challenge? As with any prospective challenge, there are any number of variables and theories. Restrictions to abortion were analyzed under the trimester test of Roe v. Wade until 1992’s Planned Parenthood of Southeastern Penn. v. Casey. Casey instituted the undue burden test (meaning a restriction acts as a “substantial obstacle”), which allowed for restrictions relating to, among others, parental consent and a 24-hour waiting period. In other words, Casey ushered in the era of “Why don’t you go back and think about it, little lady?” and has had the effect of further whittling away access to abortion.
Restrictions on funding—most notably the Hyde Amendment, that bars federal Medicaid funding from paying for most abortions—have been evaluated under a separate line of cases, beginning with Maher v. Roe in 1977. Funding restrictions have been upheld under the theory that the state is not obligated to provide funds for abortions, even though there exists a right to have and seek them. In other words, the government is allowed to make a value judgment, expressed through its spending. It’s not clear that the courts would view such an extreme extension of these funding restrictions as unacceptable.
In other situations, such as those involving funding for the federal Legal Services Corporation, or for federal funds to assist in the international fight against HIV/AIDS, groups seeking or receiving federal funds have mounted challenges based on First Amendment arguments, where funding restrictions were so extreme that they arguably violated organizations’ rights to free speech. However, it’s unclear whether these arguments might apply in the health care reform setting, where private insurers would be the ultimate recipients of federal funds, although women and advocacy groups might argue that they have an interest in litigating such a case. Given that the law is far from settled in this area, and the government is technically providing for separate abortion coverage plans (regardless of how they actually play out in reality), such challenges are wide open, in terms of how they might be received in the courts.
This is a critical moment in our progressive movements—everyone wants to see substantial health care reform passed, but not in a way that impinges on the basic rights of women, especially women of color and low- and middle-income women. We can and should pass reform that moves us all forward together and protects our most fundamental needs.
This post first appeared on RaceWire, The ColorLines Blog.
