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Changes and Disparities in National Abortion Law

February 20, 2017

Since Roe v. Wade established the legality of abortions, both national and state legislative branches have fought over how to interpret the decision. While national policies like the Hyde Amendment set limits on abortions, states have taken it upon themselves to either tighten or loosen rules within those guidelines, meaning that access to clinics is heavily dependent on where one lives. As President Trump takes the reigns with a decidedly pro-life stance, early signs help predict how he will change the current system.

Precedent in Constitutionality of Abortions

In 1973, the Supreme Court announced its ruling on the landmark case Roe v. Wade. On a 7 to 2 decision, the justices deemed the Texas statute criminalizing abortion unconstitutional for violating the Fourteenth Amendment, reasoning that a woman’s medical decision to terminate her pregnancy was protected by her personal liberty to privacy under the Due Process Clause [1].

Although the ruling of this case became a historical breakthrough for women by securing their right to safe and legal abortions, State legislatures and Congress have been restricting this right by passing new legislation that indirectly limits women’s access to abortion. These laws often impose unnecessary or impossible standards on abortion providers that do not improve a patient’s safety or care and reduce the number of operating clinics. For example, 20 states have structural standards requiring certain room size and corridor width measurements and 11 states require clinics to maintain relationships with local hospitals [2]. On the other hand, one federal law passed by Congress called the Hyde Amendment directly affects the patients by limiting their ability to pay for abortions. An act of opposition to the Roe v. Wade decision, the Amendment bans the use of federal funds for abortion coverage through the Medicaid program, except in certain circumstances [3].

The Hyde Amendment and its Impacts

Three years after Roe v. Wade, Congress passed the Hyde Amendment, named after late Illinois Congressman Henry Hyde [4]. As an annually ratified provision to a federal law, the Hyde Amendment bans all state Medicaid programs from using federal funds to finance abortions except in cases of rape, incest, and life endangerment. States do, however, have the liberty to decide whether they want to use their own state Medicaid funds to provide abortion care, of which only 15 do so in practice.

This act has significant implications because those who need an abortion are usually the ones who need Medicaid funding the most. In 2011, the median cost for surgical abortion at 10 weeks of pregnancy was $495 and the median cost for medication abortion was $500. The median cost for an abortion at 20 weeks of pregnancy is significantly higher at $1,350 [5]. Considering that an average monthly Medicaid income ceiling for a family of three is $1,556, paying for an abortion at 10 weeks of pregnancy would require a woman whose income is at the Medicaid ceiling in a state that follows the Hyde Amendment, to use up to a third of her entire family monthly income. Furthermore, unintended pregnancy disproportionately affects women of low-income and women of color. In 2011, studies performed by the Guttmacher Institute showed that the unintended pregnancy rate of women with an income below the federal poverty level was five times higher than that of women with an income 200% above the poverty line [6]. In addition, 79 out of 1000 black women and 58 per 1000 Hispanic women were affected by unintended pregnancy, compared to 33 out of 1000 white women. When this statistic is combined with the fact that 30% of black women and 24% of Hispanic women are likely to be enrolled in Medicaid as opposed to 14% of white women, the economic effect of the Hyde Amendment on low-income and minority women becomes apparent. Even beyond the disparities among women of different backgrounds, 58% of women of reproductive age (15-44) in the United States live in the 35 states that do not cover abortion, which is the equivalent of 7.4 million out of the 11.7 million women of reproductive age [7].

<p><em><strong>Source</strong>: </em><a href="http://kff.org/womens-health-policy/perspective/the-hyde-amendment-and-coverage-for-abortion-services/"><em>Kaiser Family Foundation</em></a></p>

Source: Kaiser Family Foundation

<p><em><strong>Source</strong>: </em><a href="http://kff.org/womens-health-policy/perspective/the-hyde-amendment-and-coverage-for-abortion-services/"><em>Kaiser Family Foundation</em></a></p>

Source: Kaiser Family Foundation

Disparities Across Regions

A January study found that access to abortion clinics varies greatly between different regions in the US. In the Northeast and West, only 23% and 17% respectively of all women live in counties without abortion clinics [8]. In stark contrast, 55% and 51% of women don’t have access to clinics in their counties in the Midwest and South. The graphic below visualizes the distribution of abortion clinics, with clusters of availability throughout the Northeast and West. Many of the clinics in the central United States also only exist in major population hubs, demarcating the disparity in access to clinics between urban and rural settings.

<p><em><strong>Source</strong>: </em><a href="https://www.nytimes.com/interactive/2016/02/29/us/why-the-abortion-clinics-have-closed.html?_r=0"><em>The New York Times</em></a></p>

Source: The New York Times

Because family planning services and contraception availability are linked to abortion clinics through organizations like Planned Parenthood, rural areas have faced problems with related issues. In its reflective study of 2007 to 2015, the Center for Disease Control found that the teen birth rate in smaller cities was 63% higher than in larger ones [9]. In a follow up report by PBS, Ginny Ehrlich, the chief officer for the National Campaign to Prevent Teen and Unplanned Pregnancy, attributed these rates to lack of access to healthcare services and contraception [10].

Recent Changes

In late June 2016, 43 years after Roe v. Wade, the Supreme Court struck down Texas laws that put restrictions on clinics in a 5-3 ruling despite its even ideological split following Justice Scalia’s death [11]. The laws required abortion clinics, even those only for first term pregnancies, to meet emergency room equipment requirements. Additionally, they mandated that abortion doctors have admitting privileges at local hospitals. Because clinics and doctors did not have the means to satisfy those regulations, 20% of Texas clinics had been forced to close. While pro-life constituents respected the regulations as “common-sense safety standards,” pro-choice campaigners criticized them for limiting access to clinics. Oddly enough, the dissenting three justices did not object to the safety of abortions, and instead argued that it would be unjust to overrule a state’s laws without regard to other issues addressed in the whole legislation [12]. The ruling itself, whilst limited to Texas law, set the precedent to potentially strike down similar laws present in half of all states shown below.

<p><em><strong>Source</strong>: </em><a href="http://kff.org/womens-health-policy/slide/existing-laws-requiring-abortion-clinics-to-meet-surgical-center-standards/"><em>Kaiser Family Foundation</em></a></p>

Source: Kaiser Family Foundation

Trends for the Future

 

On his inauguration day, President Trump signed a symbolic executive order jeopardizing the stability of the Affordable Care Act (ACA), commonly known as Obamacare. Although the exact contents of President Trump’s first executive order are cryptic and vague, this lack of clarity will likely allow him to enact future policies more easily. The order’s exact language is that agencies can act only “to the maximum extent permitted by law” [13]. As a result, despite not spelling out clear intentions, the order essentially secures the Trump administration the ability to make future executive alterations to existing policies under its own interpretation.

As it currently exists, the ACA mandates that all preventive care approved by the FDA should be covered by health insurance without cost sharing under its Medicaid expansion to cover the poor [14]. Under its umbrella, the term “preventive care” covers contraceptive care, breast screenings, maternity, and prenatal care [15]. Contraceptive methods like birth control pills and intrauterine devices (IUD) can prevent unplanned pregnancies and therefore future abortions. The reform ensured that the costs from maternity and prenatal care would be shifted to the government from the poor. These services made safer childbirth in hospitals more affordable and available to low-income mothers.

Given this additional freedom to bypass congress for changes in the ACA’s implementation, the new administration will likely either repeal parts of the ACA on its own or repeal it in its entirety with the help of Congress. Should he dismantle the ACA part by part, it will likely not drastically affect the status quo for 2017, since the its annual enrollment period has already begun. Women on employer and Healthcare.gov plans that rely on the private market and may face price increases if insurers pull out of the online marketplace, and as a result be forced to drop out of insurance. Women on Medicaid plans, however, could certainly lose their preventive care coverage should the Trump administration decide against providing those benefits [15].

As President Trump collaborates with congressional Republicans to outline a full replacement for the ACA, his track record indicates that his policies will discourage abortions and also limit funding for family planning services [16]. In addition to his recent order, he has signed another one eliminating funding for organizations overseas that provide information on abortions. He has also picked cabinet members who are ardently pro-life, led by his Vice President Mike Pence. The Democrats wish to repeal the Hyde Amendment because it impedes the precedent set ensuring a woman’s right to an abortion, while the Republican Party seeks to codify the Hyde Amendment under HR7, which would permanently limit the use of federal funds for abortion [4][17]. Both sides’ efforts to revise the Hyde Amendment have thus far been blocked by political obstacles.

The state of future of abortion and family planning access certainly appears more pro-life than it was under the previous administration, but it remains to be seen how congressional and state Democrats will respond.

References

  [1] http://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/private-family-choices-constitutional-protection-for-the-family-and-its-members/roe-v-wade/

  [2] https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers

  [3] http://www.factcheck.org/2010/04/the-abortion-issue/

  [4] http://kff.org/womens-health-policy/perspective/the-hyde-amendment-and-coverage-for-abortion-services/

  [5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4946165/

  [6] https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014

  [7] https://www.guttmacher.org/evidence-you-can-use/medicaid-funding-abortion#6

  [8] http://onlinelibrary.wiley.com/doi/10.1363/psrh.12015/full

  [9] https://www.cdc.gov/nchs/products/databriefs/db264.htm

  [10] http://www.pbs.org/newshour/rundown/teen-birth-rate-higher-rural-areas/

  [11] https://www.nytimes.com/interactive/2016/02/29/us/why-the-abortion-clinics-have-closed.html?_r=0

  [12] https://www.cato.org/publications/commentary/supreme-courts-abortion-ruling-pulls-back-curtain-licensing-laws

  [13] https://www.nytimes.com/2017/01/21/upshot/what-does-the-order-against-the-health-law-actually-do.html?_r=1

  [14] https://www.americanprogress.org/issues/women/news/2017/01/18/296705/how-women-would-be-hurt-by-aca-repeal-and-defunding-of-planned-parenthood/

  [15] http://time.com/money/4565468/womens-health-care-president-trump/

  [16] https://www.americanprogress.org/issues/women/news/2017/01/18/296705/how-women-would-be-hurt-by-aca-repeal-and-defunding-of-planned-parenthood/

  [17] http://www.vox.com/identities/2017/1/24/14370748/taxpayer-funded-abortion-house-passed-permanent-hyde-amendment

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