The Politics of Women's Health

The Politics of Reproductive Rights

Owing to the combination of well-funded and sometimes violent opposition and a diffuse political defense, the issue of abortion has become increasingly stigmatized over the past several decades. As a result, women’s health in general—an issue relevant to more than half the population—has become a hot-button issue.

During the 1980s, conservatives focused their efforts on a crusade to limit and ultimately strip women of their rights to sexual and reproductive health services both at home and abroad. This agenda has been used to win support for conservative, pro-corporate political candidates, whose economic and financial interests otherwise have little in common with many of the voters who elect them. President Reagan (who, as governor of California, approved a law in 1967 liberalizing access to abortion⁵⁵) instituted the so‑called global gag rule, which mandates that no U.S. family planning assistance can be provided to nongovernmental organizations that use funding from other sources to perform abortions in cases other than when a pregnancy poses a threat to the woman’s life or is a result of rape or incest; or that use other funding to provide counseling and referral for abortion; or that lobby to make abortion legal or more available in their country. (See p. 785 for more on the global gag rule.)

This battle continued during the 1990s, with court challenges and local and state initiatives. However, the Clinton administration did not support restraints on reproductive health and promptly overturned the global gag rule. Then came the administration of George W. Bush, which cooperated with strategies of the far right to support candidates at the local, state, and national levels representing extreme anti–abortion rights agendas. Antichoice advocates aimed to control the public dialogue around sex and reproduction through aggressive messaging strategies based on the spread of misinformation while continuing efforts through the executive branch, federal and state legislatures, and the courts to hinder gains in reproductive and sexual health policies and programs.

One legislative legacy that has had far-reaching implications is the Hyde Amendment. First adopted in 1976, it prohibits using U.S. federal funds to pay for abortions in programs administered through the Departments of Labor and Health and Human Services, including Medicaid. Exceptions are granted in cases of rape or incest, or a threat to the woman’s life. The Hyde Amendment is not permanent law; it is an amendment to a federal appropriations bill specific to those two federal departments, and it must be reintroduced for consideration during every two-year session of Congress. Yet over the years, the Hyde Amendment’s restrictions have been included in an ever-wider range of programs—for instance, abortions are no longer covered for any federal employee or members of the military. This is exceptional treatment of a legal and common medical procedure.

U.S. Policy in the Obama Years: From Relief to Retrenchment

The ongoing debate over the health care reform law underscores the formidable political obstacles to women’s health and equality in the United States. In 2009, President Obama and the Democratic-controlled Congress increased funding for evidence-based teen pregnancy prevention programs. They also revived a long-stalled authorization for the State Children’s Health Insurance Program. The Justice Department awarded $127 million to Native American and Alaskan Native communities, in part to enhance law enforcement and better serve women who have been sexually assaulted. Benefits were extended to same-sex partners of federal employees, and restrictions were lifted on federal funding for embryonic stem cell research. And President Obama overturned the global gag rule, yet again. The pro–reproductive rights public was optimistic that its champions had regained legitimacy.

But the far right engaged in a sustained and angry assault on Democrats generally—and the president in particular—throughout efforts to pass health care reform, extend unemployment benefits, and bolster the economy. These attacks escalated the war on women at both the state and the federal levels, posing the greatest threats to our reproductive and sexual rights since before the Supreme Court decision on Roe v. Wade legalized abortion in 1973.

What stunned advocates was not just the losses, but the perception that abortion had been expendable from the beginning of negotiations on the law. Women could not rely on a vigorous defense from any power bloc. It seemed that reproductive rights and justice had been “thrown under the bus”—leading the Women’s Media Center to respond with an online health care campaign called Not Under the Bus.

In part, this was the culmination of years in which advocates and elected officials generally refrained from a full-court defense of reproductive rights. Whether afraid to speak out or bowing to pragmatism, Democrats routinely failed to present a united front in countering attacks on abortion, and they abandoned attempts to win the argument. Instead, they opted for so‑called common ground strategies, seeking to prevail by accommodating anti–abortion rights positions and candidates.

As a result, the Patient Protection and Affordable Care Act includes a series of explicit limits on coverage for abortion and contraception including the following.

Limits on federal funding for abortions through the exchanges: The act requires every enrollee—female or male—in a health plan offered through the new exchanges that include abortion coverage to make two payments. One of these payments would go to pay the bulk of the premium; the other would go to pay the share of the premium that would ostensibly cover abortion care. The basis for this provision is to ensure that women who receive federal subsidies to help pay for the premium cannot use federal funds for an abortion.

This language was included at the insistence of a bloc of Democratic members of Congress, led by Sen. Ben Nelson of Nebraska, whose votes were needed for passage, since Republicans vowed uniformly to oppose the act. Analysts are concerned that the law will jeopardize coverage for abortion care—even for policies paid for with private dollars—because the administrative complexities for insurance companies may discourage them from offering abortion coverage.

This provision was underscored by President Obama when he signed an executive order on March 24, 2010, after the act was passed, emphasizing that no federal dollars would be used to pay for abortion through the newly created health insurance exchanges or through community health centers, except in the case of rape, incest, or a threat to the life of the mother. This order codifies in statute the limitations on using federal funds to pay for abortions imposed by the Hyde Amendment, described above, and includes the same exceptions. However, the executive order will outlast any two-year renewal of the Hyde Amendment.

Limits on coverage for abortion through new temporary health insurance programs, known as the Pre-Existing Condition Insurance Plan (PCIP): The act created the temporary Pre-Existing Condition Insurance Plan (PCIP), which will provide insurance to high-risk pools of citizens. PCIP is a federally authorized, state-administered health insurance plan that must accept any individual who has been uninsured for at least six months and who has a preexisting health condition. Enrollees, who would pay a premium, are usually low income and would benefit from immediate care. Since the women entering PCIP have experienced serious enough medical conditions that insurers have been unwilling to sell them insurance, they’re at a heightened risk for needing an abortion for health reasons should they become pregnant. PCIP is set to be disbanded in 2014, when the insurance exchanges become operational.

On July 14, 2010, the Department of Health and Human Services issued an interim final rule stating that abortion would not be covered by PCIP except in the cases of rape or incest, or where the life of the woman would be endangered. This order again codifies in statute the limitations on using federal funds to pay for abortions that are imposed by the Hyde Amendment—and it went beyond any expected restrictions on coverage in PCIP. The act itself didn’t mandate such restrictions for PCIP, and the Nelson Amendment, described above, applied only to the new health insurance exchanges, which start in 2014.

It was “a whoosh moment” for reproductive rights advocates, said Jill Adams, director of Law Students for Reproductive Justice. The reality sank in that reproductive rights had become truly politically precarious. EQUAL Health Network fellow Keely Monroe and codirector Ellen Shaffer argued that the provisions should be reversed, noting that the administration’s decision “would create new restrictions on abortion not already mandated by federal law, and elevate its status as a policy.”⁵⁶

Shaffer also noted, “We wrote off earlier compromises as part of the price for health care reform, to be fixed down the road. The road has come to our door. A procedure experienced by at least a third of women during our lives, abortion has become stigmatized, a toxic issue. It is not enough to appoint and elect many fine, smart, progressive women—and pro-choice men—to government. They and we need militant mobilized advocacy for reproductive choice and justice.”⁵⁷

Prescription contraceptives not covered under preventive health services: The act calls for preventive services to be covered at no cost to the patient, but the list of covered services is determined by the U.S. Preventive Services Task Force. Bowing to political pressure from the U.S. Conference of Catholic Bishops and others, the Obama administration called for a panel appointed by the Institute of Medicine to determine whether contraceptives are indeed preventive and related to health. Should the panel so decide, women will be able to use the benefit starting in 2012.

In addition, the law includes conscience-clause language that protects only individuals or entities that refuse to pay for or provide coverage for an abortion, or even refer for abortion, removing earlier language that provided balanced nondiscrimination language for those who provide a full range of choices to women in need.

Women’s groups saw this as a major loss, and advocates seek to reverse all of these provisions.

Ongoing Threats

After the Republican gains in the 2010 mid-term elections, the 112th Congress opened in 2011 with more than forty-five additional anti–abortion rights legislators in the U.S. House of Representatives and five in the Senate. They immediately introduced legislation to further restrict access to and funding for abortion and family planning services, and efforts are likely to include reinstating (and making permanent) the global gag rule.⁵⁸

Meanwhile, women are facing an increased number of restrictions at the state level. In a 2010 report detailing major trends in anti-abortion legislation and abortion restrictions enacted at the state level, the Center for Reproductive Rights noted that five states had already passed bans on insurance coverage of abortion care, even with premiums paid with private money.⁵⁹

Other states are considering a similar ban. As of early 2011, thirty-two states have enacted laws subjecting women to mandatory delays and/or biased counseling. Such counseling requires that abortion providers give their patients materials developed by the state, including pictures of fetal development and information about alternatives to abortion. These materials may contain medically inaccurate and misleading information about health risks.

“For women who have unwanted pregnancies or who have been victims of rape, incest, or abuse, these requirements can also result in unnecessary emotional suffering,” Amie Newman wrote at RH Reality Check. “These bills also interfere with the doctor/patient relationship, forcing physicians to give each woman ‘one size fits all’ treatment, instead of allowing the physician to treat each patient individually according to his or her professional judgment.”⁶⁰

Another among the numerous trends to limit access to abortion—as well as contraception—is the effort to confer “personhood” on fertilized eggs. Ballot initiatives have been attempted in Colorado, Montana, and Nevada, and while they have been defeated, proponents of these laws, who state unequivocally that they aim to ban contraception as well as abortion, continue to push for such measures. As the Center for Reproductive Rights notes, these initiatives to define personhood from the moment of conception would in fact ban many forms of contraception and some reproductive technologies such as in vitro fertilization.

The Future of Health Care Reform

By 2014, when the most sweeping health insurance reforms will take effect, there will be an unprecedented expansion of Medicaid and a new federal tax credit to make health insurance more affordable for low- and moderate-income families. The Congressional Budget Office estimates that by 2019, 32 million people will have secured health insurance coverage under the new law, as long as Congress continues to support and fund health care reform.

As women’s health advocates have noted, the PPACA is not a single-payer system and does not even include a public option. However, it opens the door to states that seek to experiment with single-payer plans; broadens policy space to move further toward universal coverage; and takes steps in the right direction by expanding public sector programs such as Medicaid and aiming to reduce administrative waste.⁶¹

The Obama administration, elected on a wave of voter mobilization, succeeded in enacting a historic health care reform law, as well as numerous other achievements. But it has yet to generate the momentum for a comprehensive economic and political movement to transform access to and equality of health care and other social services. We must continue to advocate for policies that take into account the needs of all women.