By Susan Pashkoff:
In the first three months of 2013, 694 provisions restricting a women’s right to choose have been introduced in different US states. The fact that amendments to the constitutions of various states give the foetus “personhood” is the sharp end of this intense attack.
This also takes place in the context that additional limitations were accepted as part of the passage of the Affordable Care Act when President Obama issued an executive order (March 24, 2010) affirming that the Hyde Amendment would extend to the new bill and hence to insurance company provision at the state level.
Roe, Doe and the Hyde Amendment
Many people have heard of the Roe vs Wade decision by the US Supreme Court in 1973. Few outside the US understand that the impact of that decision, together with another case the same year, Doe vs Bolton, was to give a negative right to abortion; you legally have the right, but the state does not have to facilitate your access.
Roe vs Wade affirmed that a women’s right to an abortion is not absolute. Beyond the first trimester of pregnancy the state had more interests with considerations relating to maternal life and to viability of the foetus. Roe was a weak decision and has been steadily undermined since 1973.
The Hyde Amendment was passed by the US Congress in 1976. This Amendment is specifically targeted at poor women by making clear that federal funding will only be available for abortion services in very restricted circumstances – otherwise women have to pay.
The Hyde amendment prevents direct federal funding for abortion except in three specific cases: 1) the life of the mother; 2) rape; and 3) incest. Otherwise the decision is left to the states as to whether Medicaid funds can be used to cover abortions for poor women. This means there is wide variation between states. Abortion access must be formally permitted and available, but funding is dependent upon state laws.
The Hyde Amendment inspired the passage of other provisions extending the ban on funding of abortions to a number of other federal health care programs. Consequently, those federal government employees who need abortions must pay for them “out-of-pocket” rather than them being funded as part of general health care. Abortion services are not provided for U.S. military personnel and their families, Peace Corps volunteers, Indian Health Service clients, or federal prisoners.
The Hyde Amendment is not a permanent piece of legislation; but is passed as a rider to annual Federal appropriation bills specifically tied to Health and Human services affecting dispersals of Medicaid to the states.
The attempt to redefine rape by several Republicans running for office during the last general election not only tries to normalise misogyny; it aims at further limiting federal funding of abortions for women that were raped.
Compliance with Roe vs Wade by a state enables access to federal money giving access to general health care for the poor through Medicaid; non-compliance endangers a state’s receipt of Medicaid money undermining access to general health care.
Various interferences have been introduced by states. The Guttmacher Institute has aggregated these into several categories:
1) Refusal Laws 46 states allow individual health care providers to refuse to participate in abortions; 43 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions. Private hospitals are often owned by religious denominations and in some areas they are the only available hospital provision forcing women to travel to obtain an abortion.
2) Medicaid funding for abortions: 17 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 32 states and the District of Columbia prohibit the use of state funds except in those cases specified by the Hyde Amendment. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.
3) Term limits to abortion: 41 states prohibit abortions except to protect the life of the women or her health after foetal viability (22-24 weeks);
4) Physician and Hospital requirements: 39 states require abortion to be performed by licensed physician; 20 require abortions to be performed in a hospital after a specified point in a pregnancy, 18 states require the involvement of a second physician after a certain point;
5) Late-term Abortions: prevention of certain procedures for late term abortions making them more dangerous (19 states have laws prohibiting “partial-birth” abortions;
6) Parental Involvement for Minors: 38 states require some type of parental involvement in a minor’s decision to have an abortion; 22 states require one or both parents to consent to the procedure, while 12 require that one or both parents be notified and 4 states require both parental notification and consent;
7) Unnecessary testing: e.g., invasive vaginal sonograms
8) Inaccurate Information Provision: Inaccurate information has to be given to pregnant women [e.g., links between abortion and breast cancer (5 states); foetal pain (12 states) and long-term mental health consequences of abortion (8 states)];
9) Waiting Periods: 26 states require woman seeking abortion to wait a specified period of time, usually 24 hours, between receiving ‘counselling’ (see inaccurate information above) and the procedure. 9 of these states have laws effectively requiring woman to make two separate trips to the clinic to obtain the procedure. In many states, abortion provision is limited (e.g., Mississippi and South Dakota have only one clinic in the whole state) and will require travel expenses and someone to stay overnight for a procedure, adding additional expense for women forced to pay for terminations.
10) Private Insurance Coverage: 8 states restrict coverage of abortion by private insurance plans, most often limiting coverage only to when the woman’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of additional abortion coverage at an additional cost.
Overturning Roe and Doe
Legislators in 14 states have moved to ban abortion before foetal viability and are unconstitutional due to inconsistency with Roe vs Wade. While many were shocked when Arkansas set limits to access at 12 weeks in March this year, it was North Dakota that really raised the stakes.
Three bills were signed into law by the Governor Jack Dalrymple on March 26, 2013:
1) HB 1456 prohibits abortion after detection of a foetal heartbeat (usually at 6 weeks of pregnancy)! ;
2) HB 1305 banning abortions performed solely for the purpose of gender selection and genetic abnormalities;
and 3) SB 2305 requiring admitting and staff privileges at a nearby hospital for any physician who performs abortions in North Dakota.
The Governor admitted that the purpose of the first bill was to test the limits of Roe v Wade. The third bill is a deliberate challenge to both Roe v Wade and Doe v Bolton based upon a bill that was passed in Mississippi attempting to close down the sole abortion provider in the state (Mississippi HB 1390) demanding that doctors working at the centre have hospital admitting privileges. As is often the case, doctors come from outside the area or even the state to work at the clinic and they would not have hospital admission privileges. As expected, the local hospital denied them these privileges; this law was declared unconstitutional by a federal appeals judge, Daniel P. Jordan on April 15, 2013, but it is expected to be appealed further.
A second leg of attack which has been proposed in 10 states is the proposal that personhood begins at conception. In North Dakota if the “Fetal Heartbeat Detection” bill fails, there is also a constitutional amendment termed the “Fetal Personhood Amendment” which has passed both legislatures and will be voted upon at the November 2014 ballot.
If it passes, North Dakota’s constitution will state that “the inalienable right to life of every human being at any stage of development must be recognized and protected.” The amendment would ban abortion in the state, without exceptions for rape, incest or life of the mother, and it could restrict the legality of some forms of birth control, stem cell research and in vitro fertilization.
Bills of this type have recently failed in Mississippi (Initiative 26 defining personhood at fertilisation) in 2011 and Colorado (2010, see Amendment 62 defining personhood at biological development). Since the legislature often is out of synch with the voters, there is a chance that this amendment will fail in North Dakota as well.
If both bills make it to the Supreme Court what can happen? It is not clear that the Court views it appropriate to overturn Roe and Doe. There is not even agreement even in the Republican Party on this issue.
So it is doubtful that Roe and Doe will be completely overturned; however, there is a real danger that foetal viability will be considered relevant which may impact upon term limits being further restricted. There are other considerations which relate to Doe on medical personnel and access to hospitals which may be re-examined adding further costs to accessing procedures. Most likely, further limitations on women’s right to choose will be deemed acceptable as access to abortion is considered to be a negative, rather than a positive, right.
Guttmacher Institute, “State Policies In Brief; An Overview of Abortion Laws as of April 2013”: http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf
Lori, “Three Controversial Proposals Rejected,” November 3, 2010: http://feministing.com/2010/11/03/three-controversial-propositions-rejected/
Maya, “North Dakotans will vote on a “personhood” amendment,” March 25, 2013: http://feministing.com/2013/03/25/north-dakotans-will-vote-on-a-personhood-amendment-next-election/
Jessica Mason Pielko, “Federal Court Blocks Mississippi Admitting Privileges Law”, April 15, 2013:
Mississippi Legislature, HB 1300: http://billstatus.ls.state.ms.us/documents/2012/html/HB/1300-1399/HB1390IN.htm
Roe vs Wade: SCOTUS Decision in summary: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html
Zerlina, “Victory in Mississippi: Personhood Amendment Defeated!” November 9, 2011, http://feministing.com/2011/11/09/victory-in-mississippi-personhood-amendment-defeated/