On the 46th anniversary of the landmark U.S. Supreme Court case Roe v. Wade (1973), New York Gov. Andrew Cuomo signed into law the “most aggressive” abortion rights law in the United States. New York’s new abortion law, the Reproductive Health Act (RHA), further codifies Roe into the state legislature while also expanding access and legally protecting individuals seeking abortion services. However, under the current political landscape, several conservative states do not reflect New York’s progressive ideas for protecting women’s reproductive health rights in the case that Roe is actually overturned.
Opposite to the goals of New York’s RHA law, there are three state legislative trends happening across the U.S. today: “fetal heartbeat” bills, “admitting privileges,” and “trigger laws”. The Trump administration has also highlighted abortions rights as well. At the State of the Union Address earlier this year, President Donald Trump directly attacked the Democratic party of supporting the expansion of reproductive health rights by specifically targeting the party’s support for late term abortions, “Democrats are also pushing extreme late-term abortion, allowing children to be ripped from their mother’s womb right up until the moment of birth.” While misleading the media by only highlighting extremely rare cases of abortions, the Trump administration has “boosted” conservative state governors to pass restrictive laws on accessing abortion, creating undue burdens for the most vulnerable populations within their states.
Restricting access to seeking abortion services places at risk more than 29 million women who already live in ‘hostile’ to abortion rights states. Many of the existing state restrictions already place women within this group at a higher disadvantage who already face significant barriers to general health care within their communities. Roe’s constitutional protection is also being threatened at the federal level. On March 4th, 2019, the U.S. Department of Health and Human Services (HHS) revised a section of the Title X Family Planning Program. The new regulations completely erase a previous rule that required women with unintended pregnancies to be given “nondirective counseling” on all options, including birth, adoption, and abortion.
In addition, organizations eligible to receive this federal funding are now required to be a physically separate facility that absolutely does not provide abortion services. Title X recipients are also banned from making abortion referrals in almost all cases. Reproductive health is currently under dangerous threats stemming from states and also the current administration. New York pushing progressive laws for reproductive health gives families the ability to make decisions about private family matters and most importantly gives women the opportunity and agency to control their lives.
The Reproductive Health Act (RHA)
The Reproductive Health Act (RHA), New York’s new abortion law, made headlines on January 22 this year when Andrew Cuomo signed the bill into law. In short, the RHA expands access to individuals in need of abortion care services while also decriminalizing the act or either enduring or providing an abortion.
The Reproductive Health Act does three important tasks. First, it removes abortion from the state’s criminal code and locates it into public health law. Second, it expands the list of health care providers that can perform the procedure from beyond just physicians to any licensed, certified, or authorized health care practitioner, for whom abortion is within their scope of practice. Finally, it expands the gestational time limit of having a legal abortion, passing the usual 24 weeks deadline. If an abortion must take place beyond 24 weeks, the RHA allows an exception to protect a woman’s life, health, or where there is an absence of “fetal viability,” or the ability for the fetus to survive outside the womb. New York’s state law previously only allowed abortions after 24 weeks if the woman’s life was in jeopardy.
The Reproductive Health Act was long overdue. Democratic lawmakers in New York had attempted to pass a law like the RHA for years but it previously failed with a Republican controlled state senate. In November of 2018 however, Democrats won back the senate for the first time in nearly a decade. New York Gov. Andrew Cuomo, a proud Democrat, vowed to take the opportunity to broaden reproductive health rights for all women in New York State. With a new democratic senate, the normal “stranglehold on bills” has loosened and has allowed the passage of such a crucial law that further protects reproductive health rights.
Trump, abortion, and the media
The week following Cuomo’s signing of the Reproductive Health Act, President Trump took the opportunity at the State of the Union Address to criticize New York’s new abortion law. President Donald Trump directly attacked the Democratic party of supporting the expansion of reproductive health rights by specifically targeting the party’s support for late term abortions, stating “Democrats are also pushing extreme late-term abortion, allowing children to be ripped from their mother’s womb right up until the moment of birth.”
President Trump also went on to criticize Virginia Gov. Ralph Northam arguing, “the governor stated that he would even allow a newborn baby to come out into the world and wrap the baby and make the baby comfortable and then talk to the mother and talk to the father and then execute the baby.” In an interview with radio station WTOP, Northam responded to the false claim of his support of infanticide calling it, “shameful and disgusting.” He added, “This is why legislators, most of whom are men, by the way, shouldn’t be telling a woman what she should and shouldn’t be doing with her body. We want the government not to be involved in these types of decisions.”
Abortion rates over the years
Following Trump’s State of the Union speech, Dr. Kristyn Brandi, obstetrician-gynecologist and a board member from Physicians for Reproductive Health, told Time Magazine that his arguments about women getting abortions while in labor are a “gross mischaracterization” of abortion care. She said, “they’re using these theoretical extreme examples to try to scare people. It’s not something that any person would come seeking, and it’s not something that any doctor would provide.”
Abortions have actually been on the decline for many years, and late-term abortions have become extremely rare. According to a study from the Guttmacher Institute, the leading research and policy organization committed to advancing sexual and reproductive health and rights in the United States and globally, 90% of all abortions take place during the first trimester of pregnancy, 9% of abortions take place after the first trimester, and just 1 percent take place at 21 weeks or later. According to a surveillance report in 2015, conducted by the Centers for Disease Control and Prevention (CDC), the leading national public health institute of the United States, from 2006 to 2015, the total number of reported abortions decreased 24%. In 2015, almost two thirds (65.4%) of abortions were performed prior to 8 weeks gestation, and nearly all abortions (91.1%) were performed prior to 13 weeks’ gestation. Few abortions were performed between 14 and 20 weeks’ gestation (7.6%) or prior to or at 21 weeks’ gestation (1.3%).
The report also showed that between the years 2006 and 2015 the percentage of all abortions performed post 13 weeks’ gestation remained consistently low at a rate less than or equal to 9%. The kind of abortions actually shifted towards earlier gestational ages. Abortions being performed prior to six weeks’ gestation increased by 11%. Both studies conclude that the actual rate of normal abortions has been steadily declining for years and women have increasingly had abortions much earlier on in their pregnancies, unlike what the media and the Trump administration falsely represents.
“Fetal Heartbeat” Bills, Admitting Privileges, and Trigger Laws
Despite the declining rate of abortions and evidence that women are having abortions much earlier in their pregnancies anyway, several conservative lawmakers and state legislators have contributed to a growing movement known as “fetal heartbeat” bills, which ban abortions once a doctor can detect a fetal heartbeat.
According to an article from Vox, “the rise of heartbeat bills in 2019 is a sign of where the abortion debate is today.” Rachel Sussman, national director of state policy and advocacy at Planned Parenthood Action Fund also said, “a few years ago, such bans were considered too extreme even by some anti-abortion groups.” She also added, “but with Trump in the White House and Justice Brett Kavanaugh in the Supreme Court, abortion opponents are much more politically supported and have become even more eager to challenge Roe v. Wade with the recent trend of ‘fetal heartbeat’ laws.” Several states have passed these types of bills such as Kentucky, Mississippi, Iowa, Ohio, and soon to be signed by Gov. Brian Kemp in Georgia. Both Kentucky’s and Iowa’s “fetal heartbeat” abortion ban laws have been struck down as unconstitutional.
The ‘admitting privileges’ requirement is yet another barrier to abortion access. ‘Admitting privileges’ laws require providers to gain a “right” in order to admit patients at local hospitals to have an abortion performed. These laws are in fact not new but have become very popular in recent years with nine states passing this type of requirement since 2011. Also problematic is “admitting privileges” laws have the power to close down clinics that have their admitting privilege application denied by local hospitals. In some cases, this has already occurred. The legal debate is now centered on whether requiring structural standards to existing facilities will enhance the safety of abortion care or whether these regulations create an unconstitutional overreach that harshly burdens women’s access to abortion services.
Finally, if Roe v. Wade is overturned, states could potentially have the last say in deciding to expand, restrict, or ban abortion altogether. According to an article from the Washington Post, if the Supreme Court overturns Roe, it is almost certain that four states would ban abortion immediately: Louisiana, Mississippi, and North and South Dakota. All four states have what is known as “trigger laws.” Trigger laws are basically laws “on the books,” with delayed effective dates but prepared to go into effect immediately if and only when Roe would be overturned. “What trigger laws do is that they make it clear that the state will ban abortion the moment that Roe is overturned,” said Andrea Miller, the president of the National Institute for Reproductive Health. These laws currently exist in Arkansas, Louisiana, Mississippi, and South Dakota. Four more states, Kentucky, Ohio, South Carolina and Tennessee, have “trigger laws” pending legislative approval.
29 million at-risk women
According to a study conducted by the Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the United States and globally, restricting access to seeking abortion services places at risk more than 29 million women who already live in ‘hostile’ to abortion states. The study was made to help identify which states fit into three main categories: very supportive, middle-ground, and hostile to abortion rights and access. The study found that over 29 million women of reproductive age, 13 years to 44, live in states that are “hostile” and “very hostile” to abortion rights. That is nearly half of all the women of that age group that currently lives in the United States. While 43% of all women of this age group live in hostile states, thirty four percent live in “middle ground” states, and only twenty two percent of this age group currently lives in “very supportive” states. Since the passage of Roe in 1973, there have been a total of 1,193 restrictions on abortion access. Since 2011, states have acquired 401 new abortion restrictions, a 34% increase in abortion restrictions, within the last seven years alone. In 2017, 19 states adopted 63 new restrictions on accessing abortion services. The proportion of women, ages 13 to 44, living in “hostile” or “very hostile” states, has increased from 7% to 43% from the year 2000. Even more alarming, 93% of women living in the south today live in a “hostile” state in comparison to only 15% in the West, 24% in the Northeast, and 68% in the Midwest.
State-level policy actions
Many of the existing state restrictions already place women living in “hostile” states at a higher disadvantage, many who already face significant barriers to general health care within their communities. Black, Hispanic, and Native American women experience poverty at more than twice the rate of non-Hispanic White women, and many lack the financial resources or job flexibility to make the multiple and required trips. The cost of transportation, childcare, and time off work necessary to obtain an abortion are barriers to access. In a 2013 interview at the University of Chicago School of Law, U.S. Supreme Court Justice Ruth Bader Ginsburg offered an unexpected critique of Roe, stating: “My criticism of Roe is that it seemed to have stopped the momentum on the side of change. [I] would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts.” She added, “Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
In order to address this crisis, states should create better policies and laws that protect and advance reproductive health rights and accessibility. One of the ways in which states could create such policies is by creating proactive policies and legislation rather than reactive ones. The Center for American Progress suggests that states expanding the availability of medication abortion, which numerous studies have found to be safe and effective, and allows women to obtain important medical care outside of a clinic or hospital setting especially for women in rural and under-served regions. Additionally, the organization recommends that more medical professionals, other than physicians, be allowed to administer the medication which expands access to abortion care and ensure equitable access for all women.
States should also improve access to contraceptives by improving insurance coverage. The Affordable Care Act, also known as Obamacare, requires that insurance plans make contraceptives available to women at no out-of-pocket cost. However, under the Trump administration, access to contraception methods has been rolled back due to the recent revisions of the federal grant, the Title X family planning program. States must be aware that in order to protect access to abortion services, they should also be looking to become more proactive by preventing unwanted pregnancies in the first place by offering accessible contraceptives to everyone in need of them.
Federal policy actions
On March 4th, 2019, the U.S. Department of Health and Human Services (HHS), under the Trump administration, revised a section of the Title X Family Planning Program. The new regulations completely erase a previous rule that required women with unintended pregnancies to be given “nondirective counseling” on all options, including birth, adoption, and abortion. In addition, organizations eligible to receive this federal funding are now required to be a physically separate facility that absolutely does not provide abortion services, a move to de-fund organizations like Planned Parenthood that provide a wide range of services other than abortions within their facilities. Title X recipients are also banned from making abortion referrals in almost all cases.
As New York State moves towards advancing the reproductive health rights of individuals by making abortion services more accessible, the executive branch has actually passed legislation to prohibit federal funding to organizations that do not follow the new burdensome requirements. Title X is the only federal grant program designed and dedicated to provide individuals with comprehensive family planning and related preventive health services with a “narrow” focus on the needs of low-income families, uninsured people (including those who are not eligible for Medicaid), and those who might not otherwise have access to other health care services.
One of the five new provisions states, “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning”. In addition, the administration has expanded the ability of employers to claim religious or moral objections to the Affordable Care Act’s requirement of offering their employees insurance coverage for contraception. Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association argued, “This rule intentionally strikes at the heart of the patient-provider relationship, inserting political ideology into a family planning visit, which will frustrate and ultimately discourage patients from seeking the health care they need.” The American Medical Association also made a statement that said, “The patient-physician relationship relies on trust, open conversation and informed decision making and the government should not be telling physicians what they can and cannot say to their patients.”
It is clear that the new revisions to Title X approved by the Trump administration needs to be challenged and ultimately struck down. Title X was designed to help low-income families and persons in need of family planning services they cannot afford or otherwise receive through insurance coverage. To further protect a federal grant program as Title X, congress should also ensure a system of checks and balances to protect any federal grant program, which can become jeopardized practically overnight in accordance with the current administration’s political agenda and ideology. More steps should be in place to approve such changes to a program that was designed to assist the most vulnerable populations of the United States.
Observations
Access to abortion care services and the protections from Roe v. Wade to seek a safe and legal abortion are currently under major threats. America is seeing a new era of conservative state legislators and lawmakers joining together to rollback access to abortion, with hopes of banning it altogether. Major legislative trends consist of “fetal heartbeat” bills, admitting privileges, and trigger laws, not mention the possible overturn of Roe now that the Supreme Court is majority conservative. But the problem is much greater. According to the Guttmacher Institute, more than 29 million women currently live in “hostile” states, states that have been or are becoming increasingly more restrictive to individuals seeking abortion care services.
Even though studies have proven that abortion rates have actually been declining for years and being performed much earlier within an unwanted pregnancy, the executive administration continues to highlight and mislead the media with comments directly coming from President Trump about late-term abortions and the Democratic Party’s support for expanding access to reproductive health rights. Unlike the rhetoric from the Trump administration, New York’s Reproductive Health Act is serving and meeting the needs of women and individuals of the 21st century. Conservative states should be creating proactive policies to help advance reproductive health rights not reacting to inconsistent ideas about what abortion actually is, a woman’s constitutional right to decide the future of her reproductive health and life. The Supreme Court should also strike down the Trump administration revisions to Title X because it places an undue burden on facilities and clinics like Planned Parenthood.
The subject of abortion rights and access is predicted to be a “hot” agenda item for the upcoming 2020 election. With a forward looking vision for the country, it is with hope that the future candidates for the U.S. presidency design a new era of protecting a woman’s right to have agency over her own life, without the unnecessary interference of government into private matters.
