Playing Offense: Advocates Seek Legislation to Protect, Advance Reproductive Rights

On Wednesday, after many years spent on the defensive in the "war on women," advocates took to Capitol Hill in two simultaneous efforts to protect and advance the health and rights of women and girls in the United States.

All Above All campaigners on Capitol Hill Wednesday. All Above All / Facebook

On Wednesday, after many years spent on the defensive in the “war on women,” advocates took to Capitol Hill in two simultaneous efforts to protect and advance the health and rights of women and girls in the United States.

One of these is the introduction concurrently in the Senate by Sen. Richard Blumenthal (D-CT) and in the House by Rep. Judy Chu (D-CA) of a new piece of legislation, the Women’s Health Protection Act (WHPA). The second is an educational campaign, All Above All, that has brought more than 150 people from across the country to educate members of Congress and their staff on the importance of public funding of abortion care for low-income women.

If passed, the WHPA would create federal protections against state restrictions “that fail to protect women’s health and intrude upon personal decision-making,” according to its sponsors. Asserting that “a woman’s constitutional rights should not depend on her zip code,” the bill “promotes and protects a woman’s individual constitutional rights, no matter where she lives.”

WHPA both retroactively and proactively addresses efforts by GOP- and Tea Party-controlled state legislatures throughout the country to make it difficult enough for women to obtain legal, safe abortion services that their constitutional rights to abortion are rendered meaningless.

State legislatures in Kansas, Mississippi, Ohio, Oklahoma, Texas, Virginia, and Wisconsin, to name but a few, have passed a record number of laws restricting access to safe abortion care, including requirements for mandatory waiting periods, hospital admitting privileges, and the size of clinic hallways, janitorial closets, and parking lots—none of which are medically necessary. Outright or de facto bans on medication abortion have made early abortion more difficult to obtain, while bans on later second-trimester abortions further reduce women’s options for terminating a pregnancy. Requirements for forced ultrasounds or those that force doctors to read government-mandated scripts containing outright lies about abortion violate women’s bodily integrity and their rights to informed choices.

Taken together, these restrictions have both dramatically reduced the number of clinics providing abortions and dramatically increased the costs to women of obtaining safe abortion care. “The cumulative effect of these numerous restrictions has been widely varying access to abortion services such that a woman’s ability to exercise her constitutional rights is dependent on the State in which she lives,” write the authors of the bill.

“In states like Texas and Wisconsin, legislatures are passing bills with the false pretext of protecting health when their only goal is to obstruct and curtail access to safe and legal abortions and reproductive services,” Sen. Blumenthal told Rewire via email.

“These laws are largely unconstitutional, and some measure of certainty and clarity is required to preempt these regulations and laws so women are not deterred in their very personal decisions based on their own values on how they want to use their constitutional rights,” Blumenthal continued. “The Women’s Health Protection Act will provide a clear and certain response to these regulations and laws that impose unnecessary tests, procedures and restrictions—including requirements for physical layout in clinics—on reproductive services.”

The WHPA uses the Commerce Clause of the Constitution and Section 5 of the Fourteenth Amendment to render unlawful any and all current and future restrictions because they “single out the provision of abortion services for restrictions that are more burdensome than those restrictions imposed on medically comparable procedures,” those that “do not significantly advance women’s health or the safety of abortion services,” and those that “make abortion services more difficult to access.” The WHPA also provides individuals, entities, and attorneys general with the rights to sue for superfluous violations of access to safe abortion.

“This is a great day for the women’s health movement as we launch proactive efforts to ensure that women have access to a full range of reproductive health services,” Dawn Laguens, executive vice president at the Planned Parenthood Federation of America, told Rewire via email. “Women, especially low-income women, across the country face many challenges to accessing safe and legal abortion—from funding to parental notification to building code rules intended only to shut down licensed abortion providers—and we fully support efforts to lift all of these barriers. “

Even absent ideologically driven restrictions that drive up the costs of obtaining an abortion, some women struggle to afford safe abortion care because they are already struggling economically. This is where All Above All, a multi-year campaign supported by 28 organizations throughout the country, comes in. All Above All is focused on lifting bans on public funding for abortion coverage, such as exist under the Hyde Amendment, the Federal Employees Health Benefits Program, and TRICARE, the Department of Defense health benefits program.

Nearly one in seven women ages 15 to 44 is insured through the Medicaid program, and 49 percent of  Medicaid enrollees are people of color. The federal government insures low-income women through Medicaid, the joint federal-state public insurance program designed for Americans too poor to afford health care on their own, but the Hyde Amendment has restricted the use of federal funds for abortion coverage to cases of life endangerment, rape, or incest. The federal government directly provides health-care services to federal prison inmates, women in detention centers, military veterans, and Native American women, but also restricts the use of federal funds to provide abortion services to these populations. Further restricting women’s access to safe abortion care are laws passed by numerous state legislatures that restrict private insurance coverage of abortion, including 23 states that restrict abortion coverage in plans that will be offered through the health insurance marketplaces.

Numerous studies and analyses have found that restrictions on public funding of abortion prevent many women from obtaining timely, safe abortion care, and often result in forced pregnancy. Funding gaps deeply affect low-income women, women of color, immigrant women, and young women who already struggle with day-to-day living expenses and often have limited access to the resources, information, and services necessary to prevent an unintended pregnancy in the first place. Women in these circumstances struggle to pay for safe abortion services in the best of circumstances, and their options have dwindled with the rising costs that result from mandatory waiting periods, long distances between clinics, and other barriers to care.

The mission of All Above All is to ensure that by removing these restrictions, every woman has affordable and comprehensive health-care coverage that includes coverage for abortion care, “regardless of her income, the type of insurance she has or the state she resides in, so she can make personal health decisions based on what is best for her and her family.”

Organizers describe the campaign as a “bold, national, multi-year effort to bring together Millennials, people of color and groups from around the progressive universe to build the political power and will to lift these bans on coverage.” The campaign has been working for over a year on a grassroots effort to support a legislative and public education campaign to ensure coverage for abortion for low-income women. Campaign leaders point to ongoing efforts in cities and states nationwide, including New York City, Oakland, Los Angeles, Milwaukee, Prince George, and Ann Arundel Counties in Maryland, Minnesota, Oregon, and West Virginia. As of this publishing, the campaign has more than 75,000 supporters on Facebook and via email. In addition, more than 50,000 people have signed a petition to lift coverage bans. Millennials make up the vast majority of supporters.

“All Above All is dedicated to the needs of poor women, women of color, and young women. We’ve built a coalition that is strong, committed, sophisticated, and broad-based. And of course it makes sense that women of color and groups that work directly with low-income women and young women are taking the lead,” Stephanie Poggi, executive director of the National Network of Abortion Funds, told Rewire.

The Women’s Health Protection Act and All Above All are inherently complementary. One seeks to dismantle and prevent future medically unnecessary and superfluous laws and policies at the state and local level that are targeted directly at abortion clinics and providers, and that have closed clinics and made obtaining an abortion ever more time-consuming and costly. The other seeks to ensure that every person in need of an abortion will have the resources needed to obtain one. At a time when abortion is deeply stigmatized and powerful political and economic interests are working overtime to reduce women’s access to health care, passing the WHPA and eliminating funding bans will require that reproductive health and justice groups are “all in” to coordinate and maximize their efforts.

Some leaders and experts in the abortion field are concerned about whether all the players are indeed “all in” on these complementary goals. WHPA, for example, uses the framework of Roe v. Wade when speaking about viability and access to safe abortion care in the third trimester as dependent on the health and life of the pregnant person. Speaking off the record, some providers have expressed concern that this leaves wide open restrictions on emotional and mental health faced by some women in need of later abortion care.

WPHA also does not address funding bans, so while the bill and All Above All campaign efforts are in fact complementary from the vantage point of what women need, they require different strategies and approaches. Because of this, some of All Above All’s organizers (who speak as individuals and not for the campaign as a whole) have expressed concerns that, despite communications within and among groups about scheduling and priorities, the press conference for and introduction of WHPA was scheduled on the same day as the All Above All volunteers came from across the country to hit Capitol Hill on what has been a long-planned and well-publicized legislative education day, creating the potential for mixed messages and the appearance of lack of coordination. They also expressed fear it may signal a lack of commitment by some larger reproductive rights organizations to changing the conversation around funding bans.

“We often hear that eliminating the Medicaid funding ban is too politically difficult,” said Poggi. “Well, lots of reproductive health issues are politically difficult. The dynamic only changes if advocates lead the way. If organizations aren’t willing to stand up for poor women, and invest—really invest resources—in changing these laws, why should legislators? But there’s still a lot of work to do within our own movement to get everyone on board, including some of the larger organizations. We want an investment from all groups, and are still hopeful that those who have not yet signed on to All Above All will do so soon.”

Substantively, the same All Above All organizers have also critiqued the WHPA because it explicitly excludes parental notification and consent laws among the list of regulations it would prohibit, thereby leaving young women in the breach.

“We are pleased that senators and House members are willing to introduce the Women’s Health Protection Act, which will address harmful and unnecessary restrictions that have been placed on abortion care,” said Kate Stewart, executive vice president for public affairs at Advocates for Youth. “But the WHPA does not address lifting bans on insurance coverage for abortion or parental notification and consent laws—it is explicitly limited in scope regarding laws that target low-income women and young women. If Congress members and organizations are equally committed to addressing those issues, great. That is the key question here.”

“The reality is we could pass the WHPA tomorrow, and abortion would still be unaffordable to too many women,” Stewart said. “But it is time to decide—are we going to continue to set to the side the health and well-being of young women and low-income women, or are we going to truly ensure access to safe, legal, and affordable abortion for all women?”

The question is whether the openings created by the WHPA and All Above All can force a more honest conversation about long-simmering and often unspoken tensions between and among members of the reproductive choice, rights, and justice communities that can undermine achieving stated goals of promoting the rights and health of all persons.

All Above All leaders not only remain optimistic—they are bringing new energy to the effort. “Unfortunately there is a pattern in our movement that goes back decades of failing to address the needs of marginalized women, including low-income women and young women,” said Kierra Johnson, executive director of Choice USA. “This year we are hopeful that we can begin to change that pattern. Women of color, young women, reproductive justice and allied organizations are taking the lead, going deep and broad, using sophisticated communications, policy, and organizing strategies. There really isn’t any reason for the larger organizations not to join the effort, but we realize we are working to undo patterns of power that have been decades in the making.”