Reproductive Rights: The Nationwide State of Play

In the last few months, the state of abortion rights in the United States has shifted drastically, for better and for worse. The Supreme Court has never beem…

In the last few months, the state of abortion rights in the United States has shifted drastically, for better and for worse. The Supreme Court has never beem more conservative or more likely to undo abortion rights, and the stack of anti-abortion inititives at the state level continues to grow. But we also have an openly pro-choice President and a Democratic majority in both the Senate and the House.

Here’s an overview: 

The Presidency

During his campaign for the Oval Office, Joe Biden promised a number of pro-choice action items and has so far quietly delivered on many of them.

During Trump’s run for President in 2016, he promised to nominate only “pro-life” Justices to the Supreme Court. He was able to nominate three justices during his presidency, all of whom were confirmed.   

First up, Biden rolled back both the global and domestic gag rules. The global gag rule, also called the Helms Amendment, prevented any health clinic in countries that the United States provides aid to from referring patients to abortion care. To be clear: no federal tax dollars go to providing abortion as it is, thanks to the Hyde Amendment

But the domestic gag rule goes further, barring doctors who receive Title X funding from even discussing abortion with their patients. Former President Donald Trump implemented this gag rule in 2019, and subsequently many states chose to completely pull out of the Title X program rather than comply with the constraint. 

Meanwhile, the global gag rule prevents doctors and health practitioners in other countries that receive U.S. aid from having such discussions.

Biden also disavowed the recent Geneva Consensus Declaration, which Trump had signed onto, that declared there is “no international right to abortion.”

Lastly, on January 19, the Biden Administration created a White House Gender Policy Council that aims “to guide and coordinate government policy that impacts women and girls, across a wide range of issues such as economic security, health care, racial justice, gender-based violence, and foreign policy, working in cooperation with the other White House policy councils.” Following his 2017 inauguration, Trump had moved quickly to close the Obama Administration’s White House Council on Women and Girls, and previously the Bush Administration shuttered the Clinton Administration’s White House Office for Women’s Initiatives and Outreach. 

While seeing these first steps as crucial for protecting and strengthening abortion rights both domestically and abroad, many progressive organizations and groups, such as the National Birth Equity Collaborative and National Council of Jewish Women, are calling on President Biden to form an Office of Sexual and Reproductive Health and Wellbeing to further strengthen federal policies that protect and promote reproductive health, rights, and justice through a human rights and anti-racist lens. 


Congress

There are three key pieces of legislation that Congress can introduce and pass that would strengthen abortion rights across the country.

The first is the Women’s Health Protection Act (WHPA), introduced in the House of Representatives and the Senate in 2019. Though currently undergoing a rewrite to strengthen the language of the bill, WHPA would protect the right of access to abortion by preventing bans on abortion prior to viability as protected by Roe v. Wade. It means doctors will no longer be required to provide biased and inaccurate information to patients receiving care. The act will also protect access to medication abortion in the early stages of pregnancy, ban unnecessary medical procedures such as forced ultrasounds and pelvic exams or arbitrary waiting periods, and more. 

During the last Congress, WHPA had 217 cosponsors in the House and forty-three in the Senate. The 117th Congress can take decisive action to protect the right to access safe abortion care by passing WHPA. 

Next, Congress should pass the Equal Access To Abortion Coverage in Health Insurance (EACH Woman) Act. This reproductive-justice-oriented bill would finally repeal the Hyde Amendment, a budget rider that has been passed by Congress every year since 1976 that prevents any federal dollars from going toward abortion care. This prohibition prevents anyone on Medicaid or Medicare from using their insurance to cover the cost of an abortion, which primarily affects women of color and those working toward making ends meet. 

The Hyde Amendment also prevents federal government employees and anyone in the military from using their insurance to cover abortion care, which can range in cost anywhere from $300 to $15,000. Forcing already marginalized populations to pay out of pocket is inhumane; by passing the EACH Woman Act, Congress can begin to right the wrongs of the Hyde Amendment. 

Lastly, they could pass the Global Health, Empowerment, and Rights (HER) Act was introduced in the last Congress to permanently end the global gag rule.


Supreme Court

During Trump’s run for President in 2016, he promised to nominate only “pro-life” Justices to the Supreme Court. He was able to nominate three justices during his presidency, all of whom were confirmed. 

With Justice Amy Coney Barrett’s illegitimate confirmation to the Supreme Court, the bench now leans 6-3 conservative versus liberal, opening the door for anti-abortion rulings this session. 

One such ruling has already happened: In January, the Justices caved to the Trump administration’s insistence that they be allowed to enforce the Food and Drug Administration’s rule that a person obtaining one of the two abortion medications must do so in person. At the onset of the COVID-19 crisis, the American College of Obstetricians and Gynecologists sued the FDA to temporarily lift this rule, which then allowed for mail delivery of medication. The Trump Administration petitioned the Supreme Court to reinstate the rule three times before it finally did so, forcing patients to enter life-threatening situations to obtain abortion care. 

Additionally, the Supreme Court has not yet decided whether to take up a case about a Mississippi fifteen-week abortion ban, Dobbs v. Jackson Women’s Health Organization. If won, this case would essentially overturn Roe, which gives us the federal right to abortion. 

One of the last remaining protections of Roe is the prevention of any abortion ban before viability, which is between twenty-four and twenty-eight weeks of pregnancy. If the Supreme Court upholds that this Mississippi abortion ban is constitutional, it would overturn the precedent set by Roe—which is the goal of this case. If that were to happen, it would then be left up to the states to decide whether abortion would remain legal. 

As it stands, twenty-four states would automatically ban abortion and many more states could follow. This is the third time that the Supreme Court Justices have convened to discuss taking up the case and failed to say if they will actually do so. 

While progress is underway to protect and expand access to abortion at the Federal level, anti-abortion opponents are always waiting to strike. Quick, decisive action from Biden and Congress can offset some of these attacks but only if Americans pay attention and hold them accountable. 

This post was originally published on Radio Free.


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