The Hyde Amendment, Medicaid, and Those Pesky Constitutional Rights

Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)

The battleground of the Hyde Amendment is Medicaid. Despite the rhetoric, this isn’t about not wanting to pay for abortion with taxpayer money because it’s (sometimes) an elective procedure, (sometimes) borne of the woman’s own choices.  Think about it- from a fiscal conservative point of view, there are a lot of good reasons why abortion should be accessible to all women who rely on the government for medical care and want to have an abortion: it is less costly than pregnancy, it is safer than pregnancy, and, crass as it sounds, it does avoid government expenses on another human being.

No, the Hyde Amendment was and continues to be every anti-choice lawmaker collectively throwing up their hands and saying, “Well, we can’t ban abortion entirely because of those pesky constitutional rights.  [sarcastic jazz hands]  And we can’t stop middle and upper class women from spending their own money to exercise that right.  But we can stop poor women from accessing abortion by blocking Medicaid coverage for it.”

SCOTUS found the Hyde Amendment constitutional in Harris v. McRae, but the bright side is that Justice Thurgood Marshall called their crap in one of the most glorious dissents ever penned.  He wrote that “[t]he Court’s opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid — poor women — denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.”

So how do women on Medicaid access abortion care?  Well, some women find help through a local abortion fund.  Some women live in the District of Columbia or one of 32 other states that cover abortion when the woman became pregnant as a result of rape or incest, or the woman’s life is in danger.  And some women live in one of the 17 states that fund all or most medically necessary abortions- and this is where it gets interesting.  Of those 17 states, four offer abortion care voluntarily, and the other 13 do so pursuant to a court order.

Yes, courts in 13 states have concluded that abortion care for low-income women should be funded on the same terms as other pregnancy-related and general medical care.  The ACLU’s website has a sweet map showing how the laws shake out, with citations to the cases that required those 13 states to cover abortion care.  The cases follow the basic logic that 1) if these women had $400 to drop on an abortion, they wouldn’t be on Medicaid; 2) if the state doesn’t cover this portion of their medical care, they are effectively denying them their rights under Roe v. Wade; 3) the state has no good reason to do so, so 4) the state has to cover abortion under certain circumstances.  These opinions are all awesome and I want to be BFFs with the judges who wrote them.  Read one if you can find time!

The Hyde Amendment: Past, Present, and Future

Elise Foreman, Resident Blogger (’16, Emory University School of Law)

The anniversary of Roe v. Wade on January 22 provides ample opportunity for reproductive rights activists to take a break from the political ring and assess the past year’s victories and losses. Though anti-choicers seemed to squawk the loudest, pro-choicers pushed back and managed to close the floodgates on legislation such as a 20-week abortion ban or restriction on insurance coverage. (For a list of the 113th Congress’ reproductive rights action, see here).  Efforts were similarly focused on repealing the Hyde Amendment, an embarrassment to the reproductive justice movement.

Put into place shortly after the Supremes’ decision in Roe v. Wade, Hyde prohibits the usage of federal funds to pay for abortion, unless in the case of rape or incest. This bill disparately affects low-income women, as it specifically targets Medicaid as the primary vehicle through which funds would be dispersed. (For a history of the Hyde Amendment, see here). This action creates a stratified system of health care, denying the same opportunities based upon income. An estimated 14 million women near reproductive age have Medicaid, with an estimated 4.5 million new enrollees anticipated. (See Planned Parenthood for a further breakdown of these statistics). In addition, federal funds may not be dispersed for federal prisoners or recipients of Indian Health Services.

The Hyde Amendment was originally challenged at the Supreme Court in 1980 through Harris v. McRae. As time can attest, the Supremes upheld the Amendment and disregarded the due process and equal rights guarantees so central in Roe v. Wade. Contrary to their holding, the Hyde Amendment creates a stratified system for women in America, entrenching abortion access in economics and further alienating the poor. The lack of funds may make women desperate to forego rent, electricity or other basic amenities; it may similarly force them to seek unsafe abortions – harkening back to the era of clothes hangers and back alleys which Roe sought to avoid.

The Court maintained the State’s interest in a woman’s pregnancy, and found that the refusal of funds to pay for abortion simply indicated the State’s preference for other activities (such as paying for costs associated with childbirth or prenatal care). But this action effectively brings the State into the doctors’ offices and homes of women unnecessarily. Distinguishing based upon money deepens class schisms and subjugates one under the other; keeping some women from the care they seek based upon their financial status is unjust and unequal.

With this judicial precedent, the onus now turns on activists to continue the fight in the legislature. The repeal of the Hyde Amendment should be prioritized in the upcoming year, signaling that the right to abortion is not premised upon economic underpinnings but rather the right of each woman to choose her own healthcare options without undue government interference.

 

 

 

Expansion of Hyde-like Funding Regulations

Anne Keyworth, Resident Blogger (’16, North Carolina Central University)

For decades, The Hyde Amendment has prohibited the use of federal funds for abortion services. There have been exceptions during some time periods (although not all) in cases of rape, incest, and when the pregnant woman’s life or health is at risk. Because this amendment must be renewed annually, it gives Congress an opportunity to reexamine and consider new language for it every year. Despite what party controls the White House and Congress, we continue to see the Hyde Amendment return in one fashion or another. While progressive lawmakers and advocates for reproductive justice have hoped to see the amendment’s pervasiveness dwindle overtime, it has in fact done quite the opposite: Hyde-like restrictions now are more omnipresent than ever.

Hyde-like restrictions now apply more broadly to federal worker health plans, women in federal prisons, women in the military, Peace Corps volunteers, Native Americans who utilize Indian Health Services, young people covered by Children’s Health Insurance Program, and international family planning programs that utilize funds from outside the United States in performing or advocating for abortion services. Moreover, the same ideology that the Hyde Amendment was created from has been planted in health care reform conversations for an ever evolving debate on both the state and federal levels as to what type of coverage legislators can impose such restrictions upon. Legislators in favor of Hyde-like restrictions have argued that, because the government is providing subsidies on some people’s insurance policies through the Affordable Care Act, the same restrictions must apply to the money provided by the government, effectively excluding many women on such policies from being able to access abortion services through their insurance plans.

Furthermore, states have been allowed to (and more than a third of states have already proceeded to) entirely prohibit abortion services from all policies offered through their exchanges, regardless of whether the person is receiving government subsidies or not. Some states have even prohibited private insurance companies from covering abortion services, even when not being sold through the exchange.

On a broad level, these restrictions impose upon women the notion that our government, as well as whoever is providing insurance coverage, is in a position to govern and direct what types of health care decisions women may make and what resources are available to them depending on their choice. But what such restrictions do to lower income and marginalized women specifically is even more invasive: it effectively deprives them entirely of any manner of exercising a meaningful right to choice. These women often do not have other resources for accessing the funding necessary to obtain an abortion, and by completely removing abortion coverage from insurance coverage, it renders them virtually unable to exercise their full spectrum of choices. It is time that our legislator’s reassess the impediments that Hyde-like funding has on a woman’s liberty, and stop insisting on making abortion services such a difficult right to access for so many of our women.

How Helms Censors Reproductive Healthcare

Anne Keyworth, Resident Blogger (’16, North Carolina Central University)

The Helms Amendment, enacted in 1973, placed restrictions on reproductive health organizations that receive US funding. It is supposed to permit reproductive health organizations to assist women with post-abortion care and abortion services in the instances of rape, incest, and risk of serious harm to the health of the woman. However, it has instead been interpreted by many US aid agencies as a complete ban on abortion services or equipment, and the results of this have been devastating.

Part of what the law has been interpreted to mean is that such agencies and their employees cannot engage in conversations about abortion, despite whether the procedure is legal in the given country or not. This effectively means that such agencies must censor the language they use and the conversations they may engage in with the women and families they serve. Furthermore, it has been so pervasive that it has even been attached as a condition to funding given to foreign country’s governments. For example, the United States granted Afghanistan $4.2 million for building democracy, under the condition that it agrees to the restrictions of the Helms Amendment.

One of the things I learned in my Constitutional Law class was that conditional grants being offered to states cannot be coercive, meaning that the consequences of not meeting the condition cannot be overly harsh and leave the state with no choice in the matter. Clearly, the same standard has not been applied to matters pertaining to international aid. Instead, the United States has continued to impose its political ideologies (specifically, the 1973 ideologies of the Senator who introduced the amendment, Jessie Helms – a man known for his anti-woman and homophobic beliefs) on those who accept US aid, and consequently on the women who approach such agencies when they most need unbiased, uncensored medical information; not American politics.

Censorship of maternal health and rights discussions pertaining to abortion are already pervasive in many countries, and this disproportionately impacts low income women and families in need of safe and legal reproductive health services. But many countries are seeking to expand their approach to maternal healthcare and are being stifled by the demands of the Helms Amendment. Nepal, for example, began implementing a plan to more comprehensively approach abortion care in 2004, and abortion services were made available in every district within the next five years. This was a much less restrictive approach to abortion that it had previously held. However, navigating the unclear requirements of the Helms Amendment led to restrictions on which agencies could fully implement the new law of Nepal.

The political restrictions the US is placing on countries who accept its aid act as a pervasive form of censorship, specifically related to abortion. Until this stops, abortion services will continue to be scattered and rare, and women in need of such services face unnecessary political obstacles in obtaining the medical care of their choice. Our politics has no business interfering with women’s medical decisions.

The Helms Amendment: Facepalm

Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)

Let’s talk about the late Senator Jesse Helms.  Senator Helms was the national treasure*who proposed at least ten constitutional amendments to ban abortion, voted against a Clinton nominee for assistant housing secretary “because she’s a damn lesbian,” who won reelection with racism, and who pulled a Todd Akin before it was cool when he “told an abortion-rights advocate that he would not allow an exception for rape in his antiabortion legislation because a rape victim could not become pregnant.”  He was basically your racist relative at Thanksgiving who talks about “feminazis.”

Enter the Foreign Assistance Act of 1961.  This act created and funded USAID, with the goal of promoting ‘social and economic development’ abroad.  When the Act was amended in 1973, Senator Helms’ amendment was included, which reads:  “No foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.”  Those of you playing along at home might be wondering what the issue is, since “family planning” is defined by the World Health Organization as including “use of contraceptive methods and the treatment of involuntary infertility.”  The most logical interpretation of the phrase is that it covers planning to prevent pregnancy in the first place.  After all, no one is advocating for abortion to be used as first-line contraception or for coerced abortions.  It turns out that the Foreign Assistance Act doesn’t define “family planning” at all, so USAID decided to interpret the Helms Amendment as meaning that “recipients of U.S. family planning assistance [are] legally prohibited from supporting abortion as a method of family planning using U.S. funds.”  In practice, it has operated as a total ban on funding abortion.  Even in cases of incest, rape, and danger to the woman’s life.  Even in parts of the world where rape is used as a tactic of war.  Even where USAID is expending resources to help women who were injured or sickened by botched abortions because they cannot access safe, sanitary procedures.

Is this an interpretation that Jesse Helms probably loved?  Yes.  Does the 1973 Senate vote of 50-48, primarily along party lines, suggest that this was the interpretation all along and the Democrats were not pleased?  Possibly.  But if USAID’s interpretation is what Congress intended, wouldn’t the statute have omitted “family planning” and instead read, ‘No foreign assistance funds may be used to pay for the performance of abortion or to motivate or coerce any person to practice abortions’?

Legislative action to change or omit the Helms Amendment has gotten nowhere.  Perhaps our efforts would be more impactful if we pushed USAID to interpret the Helms Amendment in the most obvious way- as barring use of USAID funds to promote abortion as first line birth control.  Intuitively, if the U.S. is committed to helping the people it serves abroad, it should do what is best for women’s health- and that sometimes includes abortion.

 

 

*NOT a national treasure

A Legacy We Can Let Die

Rhiannon DiClemente, Resident Blogger (’16, Temple University Beasley School of Law)

The number of women and girls raped in conflict worldwide is overwhelming —500,000 during the Rwandan genocide; 64,000 during the civil war in Sierra Leone; more than 40,000 during the conflict in Liberia; 60,000 during the war in former Yugoslavia—the list goes on. In the Democratic Republic of the Congo, nearly 2 million women have been raped.

Rape is one of the oldest weapons of war, yet throughout most of history has gone unpunished—the spoils of war, collateral damage. Only in the past few decades has rape even been recognized as a crime of war. While the United States government has vowed to prosecute those who perpetrate sexual violence in conflict, it has forgotten one important thing—the victims.

Around the world, women and girls who are pregnant as a result of rape are unable to access the care they rightfully deserve. Why? A 40-year-old law named after a senator who led the crusade to reduce U.S. international aid to what he called “foreign rat holes” and compared abortion rights to the Nazi Holocaust—the Helms Amendment.

America’s “foreign policy skeleton in the closet,” the Helms Amendment prohibits that U.S. funds “pay for the performance of abortion as a method of family planning.” But that’s not all—Helms prohibits that aid recipients “motivate or coerce any person to practice abortions.” Basically, groups receiving U.S. assistance (i.e. a lot) are prohibited from discussing abortion. In practice, the Helms Amendment has been implemented as a complete ban on abortion. To top it off—this is happening in countries where abortion is legal.

Let’s be clear—rape, incest, and saving a woman’s life are not family planning. Censoring free speech is a violation of human rights. Forcing women and girls to carry unwanted pregnancies resulting from rape is torture. The Helms Amendment is reproductive imperialism.

This politicizing and stigmatizing of abortion has devastating consequences in countries with struggling health systems and unwieldy maternal mortality rates. The lives of women and girls are not a political issue—they deserve better than this archaic, over-reaching, and paternalistic law. True justice for victims of sexual violence in conflict will only be a reality when women’s voices are put at the center of our foreign policy agenda. We must ensure that victims have access to comprehensive post-rape health care, including access to safe abortion care.

At a June 2013 conference on ending sexual violence in conflict, Secretary of State John Kerry stated that “ending [sexual violence in conflict] is not just a personal priority, it is a priority of President Obama, the government of the United State[s] and our allies.” He declared that sexual violence should be “banished to the dark ages and the history books.” To that I say—if you’re serious, send the Helms Amendment there too.

The Helms Amendment & U.S. Foreign Policy

Elise Foreman, Resident Blogger (’16, Emory University School of Law)

It’s that special time of year again, that time of holiday madness and cramming for finals. That time when some of us lament the state of the nation while others celebrate, but when we can all give thanks for the brief respite from obnoxious political ads. This election season was just as any other, and reproductive rights advocates can look forward to an uncertain year with the shift in Congress. But while this domestic battle continues, there is a deeper and more unsettling issue to be challenged: the Helms Amendment.

On the books since 1973, the Amendment denies any foreign assistance “used to pay for the performance of abortion” or “to motivate or coerce any person to practice abortions.” (Check out the Center for Health and Gender Equity here). The legislation has devastating effects worldwide, promulgating unsafe abortions and driving up maternal mortality. The amendment fails to accept abortions in the case of rape or incest, with drastic consequences for victims of sexual violence in armed conflict. (Go here and here for a more in-depth look on the amendment’s effects).

Embedded in the numerous concerns pertaining to this restriction lies the effect U.S. foreign policy has on the policy-making of other sovereign nations. Certainly a nation may make its own moral determinations surrounding abortion, however if money is connected that decision becomes convoluted. Furthermore, current attempts at clarifying this regulation note the legislation’s chilling effect, as organizations will act far more conservatively than necessary to preserve necessary funding. Thus counseling and procedures not directly related to abortion are denied because NGOs don’t want to take the risk their funding will be cut. (See the joint proposal of the Center for Reproductive Rights & IPAS here).

The amendment is an atrocity of American foreign policy, appeasing U.S. pro-lifers pissed about Roe v. Wade by buying the cooperation of other nations. It ignores the lived realities of women abroad and furthermore insults the control of their bodily integrity and autonomy. The decision to abort remains with the individual, not the state, and certainly not a foreign state. The policy is condescending and paternalistic at best and must be curtailed.

The Strong Black Woman and Mental Illness

Jamille Fields, Resident Blogger (Law Students for Reproductive Justice Fellow at the National Health Law Program)

I recently heard a respected psychologist say, “Black women, we make time to be depressed from the time we put kids to bed until we wake up to get them ready for school in the morning.” Her point was that a person cannot expect to devote only a night to her mental health and by morning to be able to effectively raise children, go to work, and generally live life. This statement immediately rang true to me as a reproductive justice issue.  I also thought the problem was more than just a lack of time, but also the cultural expectation for black women to be a “Strong, Black Woman.” This expectation and mental illness can seem contradictory.

Before I continue, and anyone misunderstands, let me clarify that I have always considered myself and taken pride in being a “strong, black woman.” The concept of the strong, black woman rose out of necessity through decades of oppression and racism. The black woman who could handle all that life had dealt without fear and still manage to advance her career and be there for her friends and family is a concept many of us, including myself, have embraced and taken pride in.

However, fulfilling expectations to be able to bear all and do all, doesn’t quite fit in with taking time to deal with your own mental health. Mental illness is stigmatized in America for all, but especially among African-Americans. According to the Centers for Disease Control and Prevention, only 25% of adults with mental health symptoms believed that other people were caring and sympathetic to persons with mental illness. A Mental Health America survey found that 54% of Americans, generally, and 63% of African-Americans believed that depression was a personal weakness. According to the survey, African-Americans were more likely to perceive depression as normal.

This normalizing of depression is not a surprise given a higher rate of African-Americans report feelings of sadness, hopelessness, worthlessness, and a feeling that everything is an effort. African-Americans are also 20% more likely to experience serious psychological distress compared to whites. Unaddressed mental health issues undoubtedly have implications for decreased work productivity, physical health concerns, and parents’ ability to have an effective presence in their children’s lives. This makes mental illness a reproductive justice issue.

The Affordable Care Act (ACA) has increased access to mental health and substance use services. The ACA has brought increased insurance access through the Health Insurance Marketplaces and accompanying subsidies to help purchase a plan, as well as increased Medicaid eligibility if your state has adopted the expansion.  Further, plans sold in the Marketplaces and provided to Medicaid recipients must include mental health and substance use disorder services.  Also, between the Mental Health Parity Act (MHPA) and the Mental Health Parity and Addiction Equity Act (MHPAEA), group health plans and Medicaid plans are prohibited from imposing annual and lifetime dollar caps on mental health benefits more restrictive than those on medical and surgical benefits.

At the National Health Law Program, we are working on ensuring those who need mental health and substance use treatment are able to access those services. But, I fully recognize that there must also be a culture shift to de-stigmatize mental illness before all will access these services. We must recognize that taking time for ourselves does not make us any less strong. In fact, taking care of our mental health will only make us stronger.

Reproductive Justice in the Context of Global Reproductive Health Technologies

Noel León, LSRJ Legal Fellow (’14, University of Pennsylvania Law School)

I attended The Embryo and Global Reproductive Technologies conference at last Tuesday at the UC Berkeley Department of Gender & Women’s Studies. The panelists presented a fascinating variety of sociological and anthropological research from around the world about how people perceive the nature of the “embryo” and kinship.

I usually stay away from philosophical conversations about personhood because they are so often used to diminish the humanity and autonomy of people, especially pregnant women but certainly others, making choices about their reproductive lives and families. But this conference helped me see how reproductive justice can benefit from nuanced conversations about the nature of the embryo: When global reproductive health technologies are involved, the reproductive interests of every participant at every point are implicated and must be attended to; and in order to attend to them, each participant’s understanding of their body, children, and family must be incorporated.

Under some belief systems, presenters demonstrated, the biological connection to a family member was paramount; while under others, the prominence of spiritual kinship makes biology irrelevant. Some societies house the predominant belief that the “self” inside the embryo has existed long before conception and makes its own choices about its future self; while in others it is generally believed that a “self” does not come into existence until well into pregnancy. Still other divisions exist between people whose understandings of family and kinship change based on whether a parent actually gives birth to their child.

In all of these societies, it was clear that when someone engages personally with reproductive health technologies, their perceptions often change even more. Presenters discussed how hopeful parents, surrogates, medical professionals, egg and sperm donors, and embryo researchers within one country all understood embryos somewhat differently.

Given that the extraordinarily complex transnational issues of reproductive assistance systems will likely persist, the question nagged at me: How can those in the U.S. who are involved in the global reproductive health system – as egg donors, surrogates, adoption agencies, would-be parents, corporations, reproductive health care professionals, and policymakers – engage with the system in a way that pushes it towards reproductive justice for all involved? Should institutions be systematically providing education on global impact to potential participants? Even if education could in theory help push the system to be more reproductively just, how can unbiased education be practically achieved that reaches everyone considering engagement with the system? Will the government do the educating? “Medical tourism” companies like the now disgraced Planet Hospital? Liberal or conservative press?

At this point, the best approach may be one that reproductive justice advocates have been using for many years: Stories. Some groups, such as We Are Egg Donors, are beginning to share the ways that they grapple with their own relationships to embryos and to other participants in the global reproductive technology system. But in order for the system to move meaningfully towards creating reproductive justice with sensitivity to diverse understandings of the embryo, more stories must be shared from participants at different points systems across the world. This is tall order and likely a long process, but we have to start somewhere.

The Absurd Practice of Punishing Pregnancy

Melissa Trent, Guest Blogger (’15, University of California, Berkeley School of Law)

November 20th was National Absurdity Day, a day to recall some of the absurd things in history, our country and our lives. Unfortunately, there are still absurd practices and laws restricting people’s reproductive freedom in the United States. So, in the spirit of National Absurdity Day, let’s think about the absurd practice of punishing pregnant people who are struggling with addiction based on a broader practice of placing more importance on fetal “rights” than on the person who is pregnant.

Across the country, individuals are subject to criminal punishments –including jail time- under the idea that consuming drugs while pregnant is a form of child abuse. In fact, many of these prosecutions are under so called “fetal harm” laws, which originally were written to increase penalties against someone who harms a pregnant person.  These laws often don’t include exceptions for the person who is pregnant and legitimatizes the idea that the fetus is a separate and distinct person that has “rights” against the pregnant individual. What’s more absurd is that at least 38 states have these “fetal harm” laws on the books that can then be used against the pregnant person instead of offering them more protection.

National Advocates for Pregnant Women have found at least 413 cases of pregnant women being incarcerated or forced into treatment between 1973 and 2005, and since then, NAPW has counted at least 300 more cases and report that this number is a “severe undercount.” These practices are based on a criminalization of pregnancy where people who become pregnant are have fewer rights and are more likely to face government intrusion than someone who is not pregnant. They are no longer their own free person and can be punished under laws that not only harm them, but can be harmful to their families and pregnancies. This is absurd.

These practices ignore the information we have about substance abuse and pregnancy and are based on an exaggeration of the harm caused to fetuses by substance abuse. In the case of opioid abuse, the American College of Obstetricians and Gynecologists has found that the abrupt discontinuation of use can be more dangerous to the fetus because it can cause “preterm labor, fetal distress, or fetal demise. “ Additionally, criminalizing pregnant people makes them less likely to seek help or medical support because they know they might be subject to mandatory drug testing and criminal penalties for trying to access healthcare and substance abuse support.

Rather than discouraging pregnant people from seeking prenatal healthcare, hospitals should be a safe place for individuals to come for support in their pregnancy and for their substance abuse problems, as there are treatments and medications than can help pregnant people through dangerous withdrawals and help them get clean. So, as a nod to National Absurdity Day, let’s take a moment to think about how ridiculous it is to treat pregnant people as less deserving of privacy or freedom than non-pregnant people and the continued absurd trend of focusing on fetal rights while ignoring pregnant people’s rights.