The Year in Preview: Taking the Offensive on Reproductive Rights

Read our earlier "Year in Preview" pieces on the media and voting rights here. Check back tomorrow for previews on the 2014 Supreme Court schedule and poverty politicking from the right.

AP Photo/Eric Gay

The four horsemen haven’t appeared on the horizon yet, nor has the sea turned to blood, but you’d be forgiven for thinking that when it comes to reproductive justice in the United States, the end times are just around the corner.

In 2013 alone, states enacted gobs of restrictions on early access to abortion. From Texas to Ohio to Iowa, dozens of clinics shut their doors. The courts are abortion-rights advocates’ best hope for stemming the tide of regressive legislation, but as Scott Lemieux has extensively documented here at the Prospect, their judgments have been decidedly mixed.

In this ever-growing maelstrom of incursions on abortion rights, pro-choice politicians have stayed on the defensive, clinging to the standards established by Roe v. Wade even as conservatives whack relentlessly at their foundations. Given the apocalyptic tenor of the times, supporters are routinely lauded as martyrs for the cause. Wendy Davis’s doomed filibuster against a restrictive abortion bill on the floor of the Texas Senate was undoubtedly the high point for the pro-choice movement this year, even though it was clear that the law—which is now wreaking havoc on the state’s abortion providers—would pass anyway. But the victories are almost always pyrrhic, a trickle of small symbolic triumphs amid an avalanche of defeats.

On the one hand, it’s hard to blame abortion-rights supporters for adopting such an embattled stance; the past few election cycles have swept waves of far-right politicians into state legislatures, ushering in new Republican majorities and super-majorities that make restrictions hard to override. But it’s the end of the year, and as we look forward to 2014, let’s indulge in a thought experiment: What if pro-choice politicians wanted to get serious about expanding women’s reproductive rights, not just grimly holding the line?

At least for now, any meaningful attempts to beat back the tide will have to be undertaken at the state level. Earlier this year, federal lawmakers introduced a bill called the Women’s Health Protection Act, which would outlaw all regulations on abortion clinics that are more burdensome than the restrictions imposed on similar medical facilities. The bill, which had no Republican co-sponsors in either house, was more symbol than substance.

California’s legislature, on the other hand, actually managed to pass a law that removes unnecessary restrictions on abortion clinics, and expanded the number of medical professionals who can perform first-trimester procedures. Blue state legislators aren’t the only ones who can step up to the plate. Today, Pennsylvania lawmakers introduced the first package of bills in the Women’s Health Agenda, which includes a law establishing a statewide buffer zone around abortion clinics to keep protesters from harassing patients and staff.

The problem, of course, is that these fixes aren’t especially sexy. Even among the most diehard abortion-rights supporters, it’s easier to raise ire about patently unconstitutional encroachments on a fundamental right than to rile people up about buffer zones, medical scope of practice laws, or improvements to Medicaid. But for abortion supporters who are tired of playing defense, here are a few measures that would make a tangible difference for women in the coming year—and could pass, even in the midst of an abortion apocalypse.

Expand state Medicaid coverage for abortion

One of the greatest anti-choice victories happened only three years after Roe v. Wade with the passage of the Hyde Amendment, a law banning the federal government from funding abortion, except in the case of rape or incest. This means that women on Medicaid—who are among the most vulnerable to unintended pregnancy—have to pay out of pocket for abortion procedures. The Guttmacher Institute, a research organization that supports abortion access, estimates that one-quarter of Medicaid-eligible women who would have chosen abortion give birth instead when the funding is unavailable. “The law requires women to raise money through painful sacrifice,” says Stephanie Poggi, the executive director of the National Network of Abortion Funds, a group that helps low-income women pay for abortions and fights to restore federal Medicaid coverage of abortion. “They’re using their rent money. They may have to let their heat get turned off, or their electricity.”   

Seventeen states use their own Medicaid funds to provide some or all medically necessary abortions, a definition that can encompass psychological threats to a woman’s health as well as life-threatening complications like ectopic pregnancy or cancer. Two of these states—Arizona and Illinois—are generally excluded from the count because, thanks to bureaucratic incompetence and lack of political will to fix it, their programs are, to put it generously, nonfunctional. With a few exceptions, most of these policies exist in states that are already fairly progressive on abortion. But there are a few states where Medicaid reform should be a no-brainer. Colorado, Delaware, and Maine—all states with few abortion restrictions on the books—only permit Medicaid-funded abortions under the limited conditions established by the Hyde Amendment. Although there’s no sign that pro-choice legislators have decided to take up this particular crusade, these states would be the logical place to start.

There’s room for reform even in the states that already fund medically necessary abortions through Medicaid. In a recent series of research briefs, Ibis Reproductive Health, a nonprofit reproductive issues organization, revealed that in many of the states where public money is ostensibly available for low-income women’s abortions, few providers accept Medicaid because the system is so convoluted and difficult to navigate. “When claims are processed slowly or the offices have limited hours—or any other number of logistical barriers—clinics will have to hire a dedicated person to deal with the bureaucracy, and that’s expensive,” says Amanda Dennis, an Ibis associate.

The breakdown of these systems is especially disturbing, Dennis says, because when Medicaid works, it’s a tremendous boon to women and providers. In the states that don’t allow Medicaid funding for abortions except in dire circumstances, low-income women often terminate later in their pregnancy when the procedure is more expensive and dangerous presumably because they need time to raise money. Part of the problem is the creakiness of Medicaid itself; many eligible women don’t enroll because the paperwork is onerous and expensive. “Just working to enroll more women in Medicaid can make a huge difference,” Dennis explains.

Allow nurse-practitioners to perform early abortions

California pro-choice advocates scored a major coup in October when Governor Jerry Brown passed a law allowing advanced-practice clinicians—a technical term for nurse-practitioners, certified nurse-midwives, and physician’s assistants—to perform surgical first-trimester abortions. If this development doesn’t seem especially groundbreaking, think again: Over half of the state’s counties have no abortion provider, in large part because it’s too expensive to staff rural clinics with a physician.

Before this year, California was one of a handful of states that allowed these mid-level practitioners to induce abortion using a pill. Anti-choice politicians strenuously opposed expanding their scope of practice to include surgical abortion, where fetal tissue is vacuumed out of the uterus using a small tube attached to a pump, citing health concerns. Their argument held, mostly because there was little research showing whether mid-level clinicians could actually perform abortion as safely as physicians.

Then a group of researchers at the University of California-San Francisco (UCSF) decided to find out whether these anti-choice worries held water. The six-year study revealed that not only is first-trimester abortion an exceptionally safe medical procedure, advanced-practice clinicians were eminently capable of performing it.

Right now, besides California, only four states—Oregon, Montana, Vermont, and New Hampshire—allow mid-level clinicians to perform surgical abortions. More than thirty others have laws on the books that explicitly limit abortion procedures to licensed physicians. But ten more—including New York, Washington, Massachusetts, and Maryland—occupy the muddy middle ground where California once stood, permitting advanced-practice clinicians to dispense abortion pills but not perform surgical procedures. “What was so great about California was that UCSF provided this evidence base that other states can use,” says Elizabeth Nash, state issues director for the Guttmacher Institute. “You can’t deny that this is safe. That proof can be used in other places.”

Remind state legislatures what women’s health protections actually look like

The Women’s Health Agenda introduced by Pennsylvania legislators earlier today might seem like a cop-out because it doesn’t go for the jugular on abortion reform. Although Pennsylvania has its own set of onerous restrictions on providers and bans abortion coverage in the health care exchanges, most of the bills in the package address the issue of reproductive rights in a much broader way. Some of the measures affect pregnant women in the workplace—requiring employers to provide places for sanitary breastfeeding, allowing pregnant women to sit down on the job—while others protect victims of domestic violence. The lone abortion provision would impose a 15-foot buffer zone around the state’s clinics.

But considering the challenges women’s health supporters in Pennsylvania face—Republican majorities in both houses of the legislature and a Republican governor—trying to emphasize the breadth of the reproductive-rights program is a smart strategy. It also offers pro-choice legislators the opportunity to go on the offense for a change. “We’re so used to playing defense as women’s health supporters, we want a chance to be pro-active,” says Gabe Spece, executive director for the office of Democratic Representative Dan Frankel, one of the Women’s Health Agenda’s co-sponsors. “The atmosphere on abortion rights in the legislature right now is very harsh. But we have a bunch of bills here that like-minded people with common sense can agree on, and we’re optimistic that they’ll have significant bipartisan support.”

This kind of effort is especially important in Pennsylvania, which had the dubious honor of being home to Kermit Gosnell, the rogue late-term abortion doctor who was convicted in May of murdering babies born alive during attempted abortions, and killing a woman with an anesthetic overdose during a procedure. As the horrifying specifics about what went on in Gosnell’s Philadelphia clinic unspooled, anti-abortion state legislators began calling for more restrictions on other abortion facilities, despite the fact that all of Gosnell’s actions were already illegal. Abortion rights supporters protested, pointing out that further restrictions on clinics would make abortions harder to get, spurring more demand for the ugly services of providers like Gosnell, who mainly served low-income women, at cut-rate prices.

But Pennsylvania legislators don’t have a monopoly on spurious claims to protect women’s health by over-regulating abortion clinics. In other states with Republican majorities, packages like the Women’s Health Agenda could marshal some common ground on other key reproductive rights issues like sex education and heightened protections for pregnant women in the workplace. Of course, bills repealing some of the other restrictions on abortion clinics would also be welcome. But in this sour political climate, any effort to make progress on reproductive rights should be applauded.

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