Abortion and Obamacare

President Obama’s healthcare reform act is one of the most significant pieces of legislation for women’s healthcare in decades.

It expands coverage to over 10 million low-income women.  Pregnancy, previous cesarean sections and sexual and physical abuse can no longer be treated as pre-existing conditions. And women across the country now have easier access to contraception.

But Obamacare is a Trojan horse.

The compromises it took to get women these benefits ushered in an aggressive assault on abortion rights that essentially chopped several rungs off the ladder to equality that American women have been building for over a century.

Women may seem to have moved forward, but that’s not the case at all.  Instead of standing up for the 35% of American women who will have abortions at some point in their lives, Senate Democrats and the Obama administration essentially turned their backs and popped in ear buds to drown out the sound of the anti-abortion measures noisily clambering through the open window behind them.  And every compromise the Obama administration and pro-choice politicians made irrevocably altered the fight for abortion rights.

Establishing abortion access as a fundamental component of women’s healthcare has been a crucial strategy for the pro-choice movement.  The decade before the Affordable Care Act came to be, the national abortion debate centered on late-term abortions, parental consent for minors, violence against doctors and clinics, and the lack of access to abortion services for poor women.

After Roe v. Wade legalized abortion in 1973, opponents wanted to make getting an abortion as difficult as possible.  That’s how the Hyde Amendment, a 1977 provision that prohibits federal money from funding abortion, came to be.  The provision applies to women on Medicaid, military servicewomen, Peace Corps volunteers, imprisoned women and Native American recipients of Indian Health Services Care.  Merritt Tierce, the executive director of the Texas Equal Access Fund, said the Hyde Amendment is “helping codify the pattern that abortion is not healthcare.”

Hyde is also the architecture of a deeply ingrained structural inequality that pro-choice groups like Tierce’s have been fighting for decades.  It disproportionately targets the poor, vulnerable and disenfranchised.  Women on Medicaid have to pay for abortion out of pocket unless their states cover the cost.  Some states, such as California, do this.  Most do not.

Private insurance was a different matter prior to the Affordable Care Act.  For the most part, women with private insurance were covered.  The Guttmacher Institute reported that in 2002, 87% of health insurance plans offered by employers covered abortions.  Before the implementation of Obamacare, abortion coverage in private insurance plans wasn’t an issue, even for anti-abortion conservatives.  Some plans covered it, some didn’t, but nobody seemed all that worked up about it.  But conservative lies propagated the erroneous idea that healthcare reform would increase the number of abortions and pay for them with federal subsidies.

This moved the abortion fight to the private insurance market.  Megan J. Peterson, the deputy director of the National Network of Abortion Rights, said state regulations that restrict abortion coverage in the exchanges have created controversy that wasn’t there before.  “The private market wasn’t having a big conflict about whether abortion should be included in plans,” she said.

In its original form, the Affordable Care Act would’ve maintained that status quo, keeping the federal ban on abortion funding under the Hyde Amendment and allowing insurance providers to decide whether to offer abortion coverage in their health plans.  But all of that changed when the administration started compromising.  As soon as President Obama started talking about healthcare reform, Conservatives began fighting it. For most conservative lawmakers, opposition to the Affordable Care Act had little to do with the morality of abortion.  But telling millions of uninsured people that you don’t want them to be able to go the doctor isn’t politically advantageous, so one aspect of conservative strategy was to make the fight against Obamacare a moral issue.

Even Representative Bart Stupak, the anti-abortion Democrat whose amendment led to Obama’s first abortion compromise, saw through the motives of Republicans.  “The true motives of many blogs and organizations claiming to be pro-life have become clear in recent days: to politicize life issues as a means to defeat health care reform,” he wrote in an op-ed for the Washington Post.  If Stupak could see through this, so could pro-choice Democrats.  But they compromised anyway.

Stupak co-authored an amendment that would have pretty much banned abortion coverage from most healthcare plans, both public and private, in the exchanges.  If the Stupak-Pitts amendment had passed, many women who had abortion coverage in their existing insurance plans would have lost that coverage.  The amendment was adopted in the House, but failed to get the votes it needed in the Democrat-controlled Senate.

The president needed the Affordable Care Act to pass the House, which it couldn’t do without the support of pro-life congressional Democrats like Stupak.  So the administration treated the anti-abortion myths about an impending abortion free-for-all as legitimate, and in the spirit of compromise, President Obama signed Executive Order 13535 to reassure Stupak and other anti-abortion Democrats that the stipulations of the Hyde Amendment would apply to the healthcare reform bill.

At first glance, reaffirming the Hyde Amendment provisions seems to just maintain the status quo, which the ACA would’ve done anyway.  But when the President signed that executive order giving legitimacy and credence to the Hyde Amendment, he reinforced the anti-abortion position that abortion is not healthcare: It’s just an elective procedure that wealthy women can have.  Like a boob job.

That may sound hyperbolical, but it’s not.  In 2011, an Oregon district attorney denied the abortion request of a suicidal young woman in police custody for allegedly trying to set herself on fire.  In his statement, the DA likened abortion to cosmetic breast reduction surgery.

But Obama’s Stupak compromise wasn’t enough. In a 2010 statement, the National Right to Life Committee criticized its effectiveness: “The executive order promised by President Obama was issued for political effect.  It changes nothing.  It does not correct any of the serious pro-abortion provisions in the bill.”

Still fighting those phantom provisions, the anti-abortion movement pressed forward with more myths and accusations and demanded more concessions.  Next came the Nelson Amendment, the Senate’s version of Stupak-Pitts.

Nebraska Senator Ben Nelson is a very Catholic, very anti-abortion Democrat who previously voted against expanding contraceptive coverage and projects to reduce teen pregnancy.  The Nelson Amendment would have forbidden health insurance plans from covering abortion if those plans accepted any customers receiving insurance subsidies from the federal government, even though federal money would not have paid for or subsidized abortion coverage.  This proposal would have forced individuals with private insurance to write two separate checks to insurance companies, which would then be deposited into separate accounts reserved specifically for abortion care premiums.

Senate Democrats were ready to pass the bill with the original Stupak compromise upholding the Hyde amendment, but refused to pass healthcare reform with the Nelson amendment attached.  Senator Al Franken’s statement showed the Democrats’ unwillingness to yield: “Let me be clear – the compromise within the current bill is as far as we can go.  We have negotiated to get to this point and we cannot negotiate further.”

Yet negotiate they did.  The Nelson Amendment didn’t pass, but the compromise that kept it out of the healthcare reform bill isn’t much better.  Now, at least one insurance plan in each exchange must be abortion-free.

But it gets worse.  Much worse.  As a result of the Nelson compromise, the Affordable Care Act explicitly permits states to completely ban abortion coverage in the states’ insurance exchanges once the healthcare reform goes into effect in 2014.  Even in private plans.  Peterson said this compromise “really set us up to see significantly more restrictions on abortion coverage, especially in private plans.  This wasn’t really the case before.”

It’s definitely the case now.

The Nelson compromise pushed abortion coverage even further out of the realm of healthcare.  Peterson said “the so-called compromise that was reached with the Nelson Amendment was an invitation to the state at the state level to choose to ban insurance plans that include abortion at the state level.”  She added, “It was a pretty explicit invitation and a lot of states jumped right on it.”  And many of them have.

Twenty-three states have completely banned insurers in their exchanges from offering abortion coverage at all. Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah Virginia, and Wisconsin.

And eight of those states Idaho, Kansas, Kentucky, Missouri, Nebraska, North Dakota, Oklahoma and Utah) go even further and prohibit all private insurers operating in the state, even those not on the exchanges, from covering abortion, even though taxpayer money would not be used to pay the cost of that coverage.

The post-Obamacare world looks a lot like 1972.  Four decades after Roe v. Wade, abortion is still a luxury inaccessible to many women.

Republican-controlled states are use the boost they got from Obama’s compromises to carry out a blitzkrieg of restrictions that in some states effectively bans abortion.  Prior to Roe, a few states had already legalized abortion, and many women in the rest of the country where abortion was illegal travelled to those states to end their pregnancies.  Needless to say, abortion was a luxury available only to wealthy women.  Bloomberg reported in September that ten percent of the nation’s abortion clinics had closed since 2011.  Some states, including Mississippi and North Dakota, are down to a single abortion clinic.

Wealthier women with the means to take time off from work, pay the cost out of pocket and possibly even travel out of state can still get an abortion.  But a woman on Medicaid who needs an abortion has no choice but to pay the full cost, which can be anywhere from $400 up depending on the state in which she lives.

According to the Guttmacher Institute, low-income women have five times the rate of unplanned pregnancies, five times the rate of abortions and six times the rate of unplanned births as higher-income women.  Between 1987 and 2006, the unintended pregnancy rate among poor women increased while that of women at over 200% of the federal poverty line declined. The  Affordable Care Act will offer more healthcare coverage to poor women, they now have even less access to abortion services.  Raising the money is difficult, and advocates recall stories of families going without food to save enough money for the procedure.  In states like Texas with a 24-hour waiting period, advocates recall a family traveling several hours to Dallas and sleeping overnight in their car to make the requisite two trips to the clinic.

And as state laws continue to force clinics to close, access becomes ever more elusive, even in tragic cases where the pregnancy is a result of rape or incest, or when a woman’s life is at risk.  Now, private insurers on the exchanges are not even required to have any rape exemption.  The National Women’s Law Center says that over thirty bills introduced in state legislatures in the first half of this year “prohibit private insurance plans – either in the new health insurance marketplaces or in all plans in the state – from covering abortion even in cases of rape.”

The Affordable Care Act’s failure on abortion is a symptom of a weak strategy on women’s issues.  The left has long been on the defensive about abortion rights.  The barrage of anti-abortion maneuvers in Republican-controlled state governments elucidates the fact that this defensive position is no longer sufficient or sustainable.

The way we relate to the female body politically is a gauge of where we are on the ladder to equality.  The ACA met immediate challenges from Republican lawmakers and anti-abortion Democrats.  Like much of the national debate over competing ideals, the fight was waged over women’s bodies.

The decision to terminate a pregnancy is a very personal one that each woman must make for herself.  The infinite number of circumstances guiding that decision are too diverse to legislate.  If a person feels abortion is wrong, no one is forcing her to have one.

And abortion is just the beginning of the assault on women’s rights.  Early next year, the Supreme Court will hear Hobby Lobby Stores, Inc. v. Sebelius. The for-profit corporation is suing for the right to refuse to provide insurance coverage for certain kinds of contraception to its employees.

The Affordable Care Act will define the Obama presidency.  I’d hoped this president would be the one to take a stand for women’s constitutional rights to have choose when and if to become mothers.

But he didn’t, and in a weird twist of fate, his healthcare reform law with so much promise for women may prove to be the perfect weapon for anti-abortion activists to cut the pro-choice movement down.


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