Bringing Reproductive Rights & Justice to Law Schools

Sabrina Andrus, JD, Executive Director, Law Students for Reproductive Justice
Mariko Miki, JD, Director of Academic & Professional Programs, Law Students for Reproductive Justice

Cases on Repro Rights and JusticeToday Law Students for Reproductive Justice (LSRJ) is thrilled to celebrate the publication of the first-ever case book dedicated to reproductive rights and justice issues. Cases on Reproductive Rights and Justice (Foundation Press), authored by Professors Melissa Murray and Kristen Luker from UC Berkeley Law School in partnership with UC Berkeley Law School’s Center on Reproductive Rights and Justice, is the result of nearly a decade of critical discussion, convenings, and hard work.

You may not know this, but LSRJ played an integral role in the story of the case book. Our law student members have campaigned across the country for nearly a decade, advocating for courses that frame reproductive issues as part of a larger conversation about power, race, and class. Back in 2004, under the leadership of LSRJ’s Founder and then-Executive Director Cari Sietstra, we began to envision curriculum enrichment efforts in order to support our law student members who were lamenting the lack of courses dedicated to reproductive rights issues (sadly, one 15 minute discussion of Roe v. Wade in Constitutional Law does not count as a detailed and nuanced discussion of abortion jurisprudence). We got to work supporting law students as they campaigned for courses, first at schools including Harvard and Berkeley. We quickly developed a model curriculum to help them in their endeavors, and celebrated the first course created as a result of our initiative: a class at Harvard taught by Janet Benshoof, founder of the Global Justice Center and the Center for Reproductive Rights.

And to provide our students with another tool for their campus advocacy, we began surveying ABA-accredited law schools to get a sense of how many reproductive rights law and justice courses were being taught, publishing a Course Survey detailing our findings. The latest 2014 Reproductive Rights Law & Justice Course Survey, for example, found that since 2003, 76 unique reproductive rights law & justice courses have been taught at 46 law schools in 22 states. And almost one-third of those courses are the result of student-led course campaigns.

But we needed more. Kara Loewentheil, JD (’08, Harvard Law School), former LSRJ Board President and current Director of the Public Rights/Private Conscious Project at Columbia Law School, recalls, “When I was in law school there were few reproductive rights classes and no authoritative set of materials for teaching them. In 2007, then LSRJ-Executive Director Jill Adams and I approached the ACLU Reproductive Freedom Project and faculty at Yale Law School to talk about developing a case book, but we soon learned that there was a lot of preparatory work that had to be done first.  So, we began the Teaching and Scholarship Initiative, which hosted gatherings of scholars to discuss and encourage new scholarly work in reproductive rights.”

Inspired and guided by those conversations, LSRJ began working in 2010 on the next iteration of our course campaign and model curriculum initiatives, a Reproductive Rights & Justice Reader, building upon the countless lessons learned from the nearly 25 course campaign victories our members had achieved. The bulk of this work was carried out by our Legal Fellows at the time, Elizabeth Kukura, JD (Freedman Fellow, Temple University School of Law) and Jessica Rubenstein, JD (Legal Counsel, Planned Parenthood Affiliates of California). While we originally anticipated self-publication, we quickly understood that to achieve legitimacy within the legal academy and to reach the largest audience (and therefore provide the most help to law students, lawyers, and faculty interested in discussing reproductive rights issues with an intersectional analysis of race and class), we would need institutional affiliation. So we reached out to Professors Melissa Murray and Kristen Luker at Berkeley Law School in 2012. At that meeting we conveyed our members’ desire for a case book that discussed not only the more traditionally covered issues like abortion and contraception, but that explicitly framed those and other reproductive issues as intertwined with the critical social justice issues of our time – racism, homophobia, classism and so on. Our members wanted more than just a brief discussion about abortion jurisprudence in a Constitutional Law class, and instead demanded a textbook that helped guide a conversation about how systems of power and institutionalized oppression play out in courtrooms and capitol buildings across the country. We offered up the draft of the Reader, our vision for it, and the market analysis we had done to Professors Murray and Luker. And we continued to support their work, most recently as an official reviewer for one chapter of the case book.

To say we are ecstatic at the result of over 10 years of behind-the-scenes organizing is a true understatement. We anticipate that the case book will facilitate the course campaign efforts of our current members in ways that the model curriculum, Course Survey, and Reader could not. LSRJ Board Vice President Cecilia Fierro (’15, University of San Francisco School of Law) has been advocating for a course since she began her studies, and shares, “one of our biggest hurdles was the absence of a case book on the subject. Several of my professors at USF have sought to integrate issues of reproductive rights with race, class, and gender into their lectures, but this casebook allows for the exclusive study of the RJ framework. Basically, instead of trying to analyze a subject like criminal law with an RJ lens, students can now start with the RJ framework and see the ways in which other legal subjects influence reproductive autonomy.”

While our law student members are eager to utilize the case book in their course campaigns and learn from it in their course victories, instructors are equally enthusiastic to begin teaching from it. LSRJ’s Academic Advisory Council member Aziza Ahmed (Associate Professor of Law, Northeastern University School of Law) tells us, “As a former student of Professor Luker and now as a Reproductive and Sexual Rights professor myself, I am thrilled to have this case book to utilize in my course.  We have long needed a textbook that consolidates key cases on reproduction and sexuality that helps to illustrate how sexuality and reproduction sit at the center of much of our legal battles today. As a law student who was active in the reproductive justice movement throughout law school, I know how important it is to have a casebook that students can turn to as a resource and brings gravitas to the field of reproductive and sexual rights.”

Finally, as Kara Loewentheil says, “Almost a decade later, I’m so thrilled to see that our dream has become a reality under the wise and brilliant guidance of Melissa Murray and Kristen Luker. I’m only sad that I’m no longer a student and won’t be able to take a class using the text – but soon I hope to be able to teach from it!”


The Economics of Affordable Care

SJ Chapman, Resident Blogger (’12, Northwestern University Law School)

November 15 kicked off open enrollment season for health care, so I’ve had insurance on the brain.  I already took advantage of my “free” preventive/screening doctor’s appointment and obtained “free” FDA-approved contraception months after they became available to me under the Affordable Care Act, fearing the courts would whittle these mandates down before you can say reproductive freedom.

I’ve become especially interested the economics of the matter.  There’s no question that the Affordable Care Act has caused a lot of spending at every level.  The public at large funded legislators to draft and debate the legislation.  For-profits and not-for-profits have funded litigation either fighting or defending the law.  Folks who didn’t have insurance prior to the law must now buy it or pay a penalty.

While I like to think that the insurance companies are taking some responsibility for the reproductive health of the insured because they must now cover things like copays for well-women visits and contraception, my economic sense tells me that’s too good to be true.  It might seem like insurance companies would happily pay for preventive reproductive health services because it would save insurance companies money in the long run.  Under this reasoning, the cost of being on birth control long term and getting a pap every 3 years would be less than paying for unintended pregnancies or late-stage detected cervical cancer.  Unfortunately a recent New York Times article suggests that this isn’t the case.

So I suspect my insurance company figured out how to spread out what would have been my office visit and pharmacy copays so that they are still being paid out of our pockets instead of the insurers.  Maybe just adding a dollar to every monthly payment by (1) a man and (2) a woman who doesn’t get contraception by choice and (3) a woman who doesn’t get contraception because it is not age-appropriate would cover these costs.  Or perhaps increasing all deductibles by $50 would make up for the difference.

Ultimately is all this spending worth it?  Well, my answer is emphatically yes, because one of the ends of the Affordable Care Act is to expand reproductive health access to many people for whom it was previously cost-prohibitive.  This is a cause I earnestly support.  Even if it means we are all paying higher taxes, deductibles or premiums, I’m happy to support reproductive justice by spending a little more to increase access to reproductive health services.

Dwindling Opportunities for Abortion Provider Appreciation

Amy Krupinski, Resident Blogger (’14, William Mitchell College of Law)

A surreal experience is delivering abortion provider appreciation gifts to doctors’ offices.  First of all, a list of abortion providers has to be assembled, which is a difficult task for safety reasons.  That list is a closely guarded secret.  Then, you go to a doctor’s office, talk to the receptionist and say something along the lines of “because of the decision in Roe v. Wade, abortions are legal in this country and we appreciate the work you do every day to keep them safe and accessible,” and they look at you like they don’t know what you’re talking about because they weren’t even aware the doctor will perform abortions.  That is what it’s like in a state like Colorado, where there were a lot of private doctors’ offices where a doctor would perform an abortion.  Women didn’t have to be seen going into a Planned Parenthood if they didn’t want to.  However, due to the 205 restrictions passed across the country between 2011 and 2013, abortion procedures are limited and eliminated from certain practitioner settings.  It is a lot easier to stop providing them than to watch and wait for the day they’ll come after you for unnecessary doctor and clinic regulations, insurance coverage bans, and pre-viability bans on abortion.  These days around the country, there are significantly fewer stops on abortion provider appreciation day.  There will be no stops in my current community.  So on this Roe Day I spent time reflecting on these different environments and contemplating a remark I read, that it seems that women don’t even realize that abortions are still legal and I wonder where we’ll be in another forty-two years.

Roe Anniversary: A Look at History to Understand Our Present

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

I have always found studying history fascinating. I subscribe to the philosophy that “you can not understand where you are going until you understand where you have been.” That statement definitely applies to the Roe v. Wade victory for abortion rights and the subsequent battles to achieve abortion access. As history teaches us, it is often low-income women and women of color who are most likely to have access to their rights denied—and this holds true today.

To explore how much has changed and remained the same, I explored the organization where I work to understand their abortion rights advocacy throughout the years. The National Health Law Program (NHeLP) is a public interest law firm dedicated to health care access for low-income people. It was founded four years before the Roe v. Wade decision in 1969.

NHeLP, filed an amicus brief in Doe v. Bolton, the other decision issued on January 22, 1973. Here, Georgia law prohibited abortions, except in the cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother. Even in such cases, the law imposed burdensome restrictions, such as requiring three physicians to approve the procedure, and denied access completely to non-residents. NHeLP’s brief called out these restrictions: “It is an undeniable fact that abortion in Georgia and in virtually every other state in the United States is far more readily available to the white, paying patient than to the poor and the non-white.” This line could be pasted into related briefs today as abortion restrictions still disproportionately impact women who don’t have the money and ability to travel to a state with improved abortion access.

In Roe v. Wade, NHeLP’s amicus brief, written in conjunction with the American Public Health Association (APHA), noted the public health concerns raised from the Texas law that prohibited abortions, except to save the mother’s life. The brief notes illegal abortions, at the time, were the greatest contributor to maternal mortality. APHA and NHeLP recognized that women who were denied access to an abortion would often use unsafe means to terminate a pregnancy. Following Roe, the number of women treated for complications related to illegal abortion steeply declined.

Post-Roe but pre-Hyde, Medicaid and other public funding programs treated abortion as an ordinary medical service. (Imagine that!). The percentage of women of color obtaining legal abortions nearly doubled and the percentage of unmarried women also significantly increased.

But, Henry Hyde recognized that while he couldn’t win the victory of taking away abortion rights, the low-hanging fruit was to restrict abortion access for low-income women. (After all, what is a right without access?) The Hyde Amendment took us back to the problem that existed pre-Roe—low-income women, who often are women of color, often cannot access abortion.

At this writing, those who are opposed to abortion (Again!) recognize they may not be able to take away the right to an abortion, but they can trample on abortion access for the most vulnerable. It was surprising recently to see Republican women temporarily thwart the introduction of a proposed twenty-week ban bill. (I thought I was in the Twilight zone). But, I was then hurried me back to reality when the House (Again!) passed H.R. 7 to remove access to abortion for women receiving health benefits through public programs.

So, the fight continues. Today, RJ advocates benefit from the advancements many who came before us achieved. The victory of Roe is to be celebrated. However, if we are to truly apply the RJ framework, then we understand the victory is not yet won until it is won for all.

Rallying for More than Reproductive Health Equity

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

This past September, I joined Philadelphia activists in iconic Love Park to share personal stories, educate community members, and call on our politicians to repeal the Hyde Amendment. The Hyde Amendment goes against our nation’s values of liberty and fair and equal treatment under the law by banning federal insurance or health plans, including Medicaid, from covering abortion.

I won’t lie, I was nervous to speak in front of the growing crowd. Despite the fact that I have been piling up student debt for six years now, I am a very privileged person. I know that the cost of an abortion would never prohibit me from exercising my right to one. I thought to myself, “What is my place in all of this?”

As a member of Law Students for Reproductive Justice, I know that 42 years after Roe v. Wade this right which I could exercise so freely still does not exist for many women. Hyde ensures that abortion is a privilege, only accessible if one can afford to pay for it. But repealing Hyde isn’t just a matter of equality, it’s also a matter of justice—justice for women who have long been punished for being victims of the systemic social, political, and economic flaws in our country. As a beneficiary of this system of oppression, it’s my duty to stand up and speak in solidarity with those who never really had the right to choose in the first place.

Here in Philadelphia, we know first-hand how the Hyde Amendment explicitly targets low-income women, women of color, and young women, ensuring that existing cycles of privilege and poverty remain firmly in place. Rally organizer Jasmine Burnett points out that despite being called the “City of Brotherly Love and Sisterly Affection,” “the motto certainly isn’t a reflection of the city’s stewardship to communities in need.”

In the city alone, more than 79,800 women of reproductive age currently utilize public insurance, but Pennsylvania prohibits state Medicaid coverage for abortion care. Local organizations, such as Women’s Medical Fund, provide financial assistance to women who cannot afford to pay for a safe abortion; however, many women still lack the financial means to ensure a safe procedure.

Just in 2011, scandal broke out after Kermit Gosnell was exposed for running a murderous abortion clinic that preyed on economically and socially vulnerable women. While many politicians called for tighter restrictions on clinics and providers, they failed to realize what led so many women to Gosnell’s clinic in the first place—desperation. A woman’s right to choose is the first line of defense. Such unnecessary deaths among the most vulnerable women in our society will continue until affordable, accessible abortion is made part of mainstream medicine.

Looking back, we weren’t just rallying for reproductive health equity that day, we were rallying for racial equality and economic justice. We stood together to demand that all women—regardless of race, age, or income level—be able to realize their constitutional rights. The rally gave me hope that the fight against restrictive abortion policies like the Hyde Amendment is far from over, and we are not backing down.

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