The Coming Congressional Onslaught Against Reproductive Rights

A Democratic congressional aide told Rewire that Republicans are "really playing with fire" if they launch attacks on funding for Planned Parenthood and dismantle the Affordable Care Act, leaving tens of millions without access to care.

This time around, the tens of millions of people who depend on the ACA and Planned Parenthood won’t have President Obama’s veto to protect their access to care. That's why Republicans' reconciliation strategy could backfire on them, a senior Democratic aide said. Lauryn Gutierrez / Rewire

Congressional Republicans are outlining their upcoming assault on reproductive health care, now that President-elect Trump’s victory officially removed one of the last barriers to their long-held goal: dismantling critical services and protections for women, people of color, people with low incomes, and LGBTQ people.

GOP leaders in the U.S. House of Representatives and the U.S. Senate have made repealing the Affordable Care Act (ACA) their first target, likely coupled with defunding Planned Parenthood. “A bill to accomplish those two things could be on Trump’s desk by the end of January,” Donna Crane, NARAL Pro-Choice America’s vice president of policy, told Rewire in a phone interview.

Others have said the ACA is unlikely to die that “swift of a death.”

Republicans will turn to traditional tactics—pursuing standalone attacks on reproductive rights, for one. But after Trump takes office, their efforts won’t be subject to a Democratic president’s veto. They can rely on the Trump administration to do some of the work through executive actions that Republicans would usually force into the appropriations process. Some actions will be destined to face legal challenges, keeping progressive advocacy organizations and litigators busy over the next four years. But the initial and potentially lasting damage could be devastating.

Below is Rewire’s look at how Republicans in the 115th Congress, with Trump’s help, may undermine reproductive rights in 2017.

Affordable Care Act and Planned Parenthood

ACA repeal tops Republicans’ legislative agenda in the new Congress, beginning January 3. They intend to undo the health-care reform law using a fast-track process known as budget reconciliation that requires a simple 51-vote majority in the Senate instead of the 60-vote threshold typically needed to bypass a filibuster and pass controversial legislation. (The Center for Budget and Policy Priorities does a great job breaking down the reconciliation process, as does NPR in likening reconciliation to the game Chutes and Ladders.)

The House only requires a simple majority to pass most legislation. By Republicans’ own account at the beginning of 2016, they had railroaded through measures to repeal the ACA in part or in full more than 50 times. But some Republicans, particularly those in the Senate, are already talking about delaying the effective date of repeal without a clear replacement ready. Their narrow 52-48 majority means that in order to pass a replacement measure, Republicans will have to bring eight Democrats on board to reach the magic number 60, according to a recent Politico report.

Some Senate Democrats, particularly those facing a tough 2018 political landscape in “ruby-red” states, are open to helping Republicans replace the ACA, according to Politico. Meanwhile, 2 million people have signed up for coverage through the ACA since November 1. 

Doing away with the ACA will come at a cost, said NARAL Pro-Choice America President Ilyse Hogue. “NARAL has a clear message for Democratic lawmakers: if you support Republicans in their effort to dismantle the Affordable Care Act, NARAL, our one million member activists, and our PAC will not support you in 2018 or beyond,” Hogue warned.

Republicans could defund Planned Parenthood, effective immediately, in the same reconciliation bill. The last time they tried that approach, in 2015, Sen. Susan Collins (R-ME) was one of two Republicans who peeled off from the otherwise party-line vote. (The other, Illinois’ Mark Kirk, will be replaced by Rep. Tammy Duckworth, a Democrat, in the 115th Congress.) Collins supports efforts to repeal and replace the ACA, along with a transition period to ensure no gaps in coverage, a spokesperson said in an email.

As far as Planned Parenthood, the spokesperson referred Rewire to Collins’ 2015 statement on why she voted against the last reconciliation bill. “I have consistently opposed eliminating federal funding for Planned Parenthood, which provides important family planning, cancer screening, and basic preventive health care services to millions of women across the country,” Collins said at the time. “For many women, Planned Parenthood clinics provide the only health care services they receive.”

Collins, along with Kirk and Sen. Lisa Murkowski (R-AK), offered an unsuccessful amendment to strike the language defunding Planned Parenthood from the 2015 reconciliation bill. Murkowski, however, ultimately voted for the final  bill.

Her press office did not respond to Rewire’s inquiries about whether she’ll continue to protect Planned Parenthood from subsequent attacks on funding.

This time around, the tens of millions of people who depend on the ACA and Planned Parenthood won’t have President Obama’s veto to protect their access to care. That’s why Republicans’ reconciliation strategy could backfire on them, a senior Democratic aide said.

“Millions of women and men rely on Planned Parenthood for health care in red states and blue states and purple states. And if Republicans insist on heading down this very harmful, partisan political path, they’re not only going to have to answer to all of us Democrats, but also to people in their own states. And this is true of the Affordable Care Act as well,” the aide said in a phone interview. “They’re really playing with fire here.”

Expect Senate Democrats to be unified, even without the option to filibuster.

“You go back and look at some of the previous fights around defunding Planned Parenthood, you see a level of engagement and focus and strength from the [Democratic] caucus broadly with women in the caucus really in the forefront,” NARAL’s Crane said. “We fully expect that to continue if not to intensify.”

Such efforts are likely to get a boost from new senators, including Duckworth, who are women of color—the same group that anchors the reproductive justice movement and shoulders disproportionate consequences from anti-choice policies.

Standalone Anti-Abortion Bills

Republicans in the House will presumably reintroduce freestanding anti-choice measures in the first days of the new Congress, as is their custom, timed to align with the anniversary of Roe v. Wade.

In the 114th Congress, they almost immediately pushed through legislation codifying the Hyde Amendment, an annual appropriations rider restricting federal funds for abortion care. Later, they sought to criminalize a common medical procedure used after miscarriages and during second-trimester abortions. Sen. James Lankford (R-OK) introduced an identical version of the dilation and evacuation (D and E) ban across the Capitol, even though most virulent abortion restrictions only make it through the House thanks to the Senate’s filibuster.

Though Trump’s victory has emboldened congressional GOP lawmakers, it’s unclear whether those in the Senate will more consistently take up extremist anti-choice policies, either from their House counterparts or from their own ranks. The Senate for the first time voted on one of the House’s 20-week abortion bans in 2015 after the Center for Medical Progress unleashed its discredited smear campaign against Planned Parenthood. Senate Democrats, joined by the GOP’s Collins and Kirk, blocked the bill from reaching the 60 votes needed to avoid a filibuster and advance to a final vote.

Three Democrats—Sens. Bob Casey (PA), Joe Donnelly (IN), and Joe Manchin (WV)—voted to let the 20-week abortion ban proceed. Donnelly and Manchin serve on the federal advisory board of Democrats for Life of America, a group that echoes conservative anti-choice talking points and junk science.

During July’s Democratic National Convention, Democrats for Life of America presented an award in honor of Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey. The 1992 decision opened up a flood of state-level abortion care restrictions as long as those anti-choice policies did not represent an “undue burden.”

Casey and Donnelly logged mixed voting records on abortion rights in NARAL’s 2015 congressional scorecard—a 60 and a 45, respectively. NARAL scored Manchin a zero. Evens so, Senate Democrats’ firewall between anti-choice legislation and Trump’s desk will remain as unyielding as ever. And Republicans like Collins may reinforce the firewall on some items.

As with 2015’s failed unconstitutional 20-week ban, any standalone abortion restrictions in 2017 will almost certainly require a 60-vote, filibuster-proof majority. NARAL’s Crane said there are enough pro-choice and mixed choice members of the Senate to block such bills from proceeding. “It’s when they pull shenanigans that things get more challenging,” she said, such as when Republicans slip legislative text or riders into a must-pass annual appropriations bill.

Confirmation Hearings

The full Senate will have to confirm Trump’s cabinet picks, including one of its own, Sen. Jeff Sessions (R-AL), for attorney general. The radical anti-choice group Operation Rescue “could not be happier” with the nomination of a man deemed too racist to serve as a Reagan-era federal judge.

Rep. Tom Price (R-GA), who belongs to a group falsely linking abortion care to cancer and thinks “there’s not one” woman who can’t afford contraception, is on his way to becoming the next secretary of the Department of Health and Human Services.

Various Senate committees will vet the nominees and vote on sending their names to the floor for final consideration. Senate Judiciary Committee Chair Chuck Grassley (R-IA) so far has scheduled Sessions’ confirmation hearing for January 10-11. The Senate Finance Committee shares jurisdiction over Price’s confirmation with the Health, Education, Labor & Pensions Committee. Only Finance will vote on sending his name to the floor, according to Politico.

Grassley’s committee will also vet Trump’s replacement for the late U.S. Supreme Court Justice Antonin Scalia. Grassley was one of the leaders of the Senate GOP’s successful efforts to block consideration of Merrick Garland, Obama’s proposed replacement for Scalia. Their obstructionism will potentially result in another anti-choice justice on the nation’s highest court. Trump vowed that any of his Supreme Court nominees would be hostile to abortion rights. He also dismissed the consequences for pregnant people who would have to travel across state lines for abortion care, should the court overturn Roe v. Wade.

Appropriations Process

House Republicans wielded the fiscal year 2017 appropriations process against reproductive rights, most notably through cuts to Title X and Teen Pregnancy Prevention grants. But under the Trump administration they may not have to rely on annual riders, particularly funding restrictions to undercut regulations, according to a House Democratic aide. “With a Republican president who has committed to repealing a lot of these regulations either independently or working with Congress to get them repealed by law, to a certain extent, some of the riders are not going to be necessary from the Republicans’ perspective,” the aide said in phone interview.

Various appropriations bills nevertheless could remain the battleground for fights over funding levels.

“Those are things that reproductive rights groups are right to be worried about,” the Democratic aide said. But the aide cautioned that congressional Republicans could insert duplicative riders, such as the “global gag rule” or “Mexico City policy” prohibiting U.S. foreign aid to organizations that provide abortion care abroad with their own funds, in order to ensure their anti-choice agenda.

Serra Sippel, president of CHANGE, the Center for Health and Gender Equity, told Buzzfeed that she anticipates Trump reinstating the global gag rule. Trump could do that via an executive order in his first days in office à la President George W. Bush. (Obama struck down the global gag rule almost immediately after his inauguration.) Senate Republicans tried, and failed, to reinstate the global gag rule in their fiscal year 2017 State, Foreign Operations, and Related Programs, and they could do so again in the fiscal year 2018 process that will begin this year.

Trump’s first budget proposal to Congress will be telling, according to NARAL’s Crane. Expect “slashing or zeroing out a bunch of good public health programs that women use and find valuable and possibly even trying to return to the bad old days when the federal government told teenagers that abstinence only was the only way to protect themselves,” she said.

Religious Imposition Measures

Religious imposition measures have been on the rise across the country, and they’re now gaining traction in Congress.

NARAL’s Crane described these bills as accomplishing Republicans’ anti-choice goals through coded “religious freedom” language, rather than mounting more explicit attacks that may encounter greater opposition. “We absolutely consider that an active area of legislation,” she said. “They’re trying to slip them in everywhere they can.”

One such bill was the fiscal year 2017 National Defense Authorization Act (NDAA), which sought to codify discrimination on the basis of gender identity, sexual orientation, religious affiliation, and reproductive health-care decisions. Sen. Richard Blumenthal (D-CT), who led the opposition, warned that the legislative battle against “sweeping taxpayer-funded discrimination” will likely continue in 2017.

House Republicans propped up the anti-LGBTQ First Amendment Defense Act one month after the Orlando Pulse nightclub massacre and could do so again in 2017. They could also force through another vote on the Conscience Protection Act as standalone legislation that would allow a broadened swath of health-care providers to sue if they’re supposedly coerced into providing abortion care, or if they face discrimination for refusing to provide such care.

Agency-Level Actions

Congressional Republicans will drive legislative damage to reproductive justice in 2017. The Trump administration will be better positioned to take on gains achieved under the Obama administration, many of which came in the form of federal guidance or regulations that helped transgender people.

These include the administration’s guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity. That same day, the administration finalized a rule extending health-care equity to transgender people, implementing Section 1557 of the Affordable Care Act. The U.S. Department of Defense this year lifted the ban prohibiting openly transgender people from serving in the military. The Washington Blade reported that Trump has slammed transgender military service as “political correctness,” indicating that his administration could roll back rights for trans service members and others.

If Congress chooses to delay the effective date of ACA repeal, the administration could still make its mark by getting rid of the law’s birth control benefit, which requires insurers to cover all FDA-approved forms of contraception without co-pays. His administration could simply issue a new directive saying that birth control is not a preventive service.

The Trump administration could initiate a rulemaking process to undo Obama’s recently finalized rule clarifying the law and sending a clear message that states cannot deny reproductive health-care providers from receiving federal Title X funds if they provide abortion care. Senate Republicans indicated they could more quickly undo the rule under the Congressional Review Act, a tool to repeal federal regulations.

Federal agencies can’t issue another rule in “substantially the same form,” according to the nonpartisan Congressional Research Service, unless Congress allows them to do so by passing a subsequent law.