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Reproductive Rights And Justice: A Critical Opportunity For The Biden Administration To Protect Hard-Fought Gains

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Early in his presidency, President Joe Biden is indicating a departure from the previous administration on the issue of reproductive rights. Within the first days of taking office, the president issued a memorandum to restore US international foreign aid for reproductive health programs by repealing the infamous Mexico City Policy, better known by its critics as the “Global Gag Rule” because the policy prevents health care providers from speaking about abortion, even in countries where the procedure is legal. President Biden stated that he ended the policy as part of an effort to “protect women’s health at home and abroad.”

Then, on February 22, the US Supreme Court agreed to hear a case challenging Trump-era policy changes to the Title X family planning program, a federal grant program for low-income people to receive contraception, breast and cervical cancer screenings, and other reproductive health services; these changes bar federal funds for providers or clinics that refer patients for abortions. In parallel, conservative-leaning state legislatures across the nation are introducing numerous bills in their legislative sessions limiting the right to choose, some of which have already been challenged in the courts.

In the midst of this rapidly evolving landscape, it is crucial that the Biden administration act swiftly and decisively to protect hard-fought reproductive rights domestically by not only reversing the anti-choice policy decisions of the Trump administration but also strengthening federal policies so that a woman’s right to choose does not continue to be treated as a political football that is one administration, one court case, or one state legislative act from being taken away.

Reversing Bad Policy Abroad: The “Global Gag Rule”

The Mexico City Policy places strict parameters around overseas non-governmental organizations receiving USAID support. When the policy is in effect, organizations risk losing critical funding if they provide abortion-related services, referrals, or counseling, or inform women about their reproductive choices. Since it was enacted by President Ronald Reagan in 1984, this controversial foreign aid approach has taken on a highly politicized nature and functioned as a “light switch” policy, turned on under Republican administrations and turned off under Democrat-led administrations. This restrictive policy has exacerbated health disparities among low-income and marginalized women in developing countries and, opposite to the policy’s stated goal, has led to an increase in unsafe abortions. Even in countries where abortion is broadly legal and a part of the continuum of reproductive health care, providers working for gagged organizations are largely unable to mention abortion as an option to women in need. In fact, the Global Gag Rule has increased the typical abortion rate in countries highly exposed to the policy by 40.0 percent and reduced contraceptive use by 13.5 percent.

In 2017, former President Donald Trump signed an executive order to reinstate the Global Gag Rule and expand the policy to include all global health assistance programs, including those that provide HIV/AIDS treatment under the President’s Emergency Plan for AIDS Relief (PEPFAR), maternal and child health, and water, sanitation, and hygiene; this equates to roughly $12 billion of aid, according to Guttmacher Institute. The vagueness of the expanded Trump-era policy fuels a climate of fear-based decision making, self-censorship, and over-interpretation for providers and organizations reliant on USAID funding. Amidst other policy changes like with Title X and the Affordable Care Act (ACA), the Global Gag Rule serves as one of many in the Trump administration’s long crusade to restrict women’s health care, domestically and abroad.

The efforts of the Biden-Harris administration to repeal the policy serves as an important first step toward addressing the harms caused by the previous administration. With the momentum generated by reversing the Global Gag Rule, activists and health leaders urge the new administration to continue addressing Trump-era policies that limited a woman’s right to choose, her family planning, and her health care options.

Reversing Bad Policy At Home

The Biden-Harris administration faces large hurdles to “protect women’s health home and abroad” as promised. First among them is reversing Trump administration policies that threaten decades of progress in women’s health, family planning, and reproductive rights. 

Title X Regulations

Beginning in June 2018, the Trump administration revised regulations within Title X, making two key changes: a “gag” rule that prevents providers from referring patients for abortion care and requirements that Title X–funded centers must both establish and maintain physical and financial separation from the provision of abortion. Furthermore, this rule removed the requirement to provide “nondirective counseling,” or impartial guidance, to patients. These changes are commonly referred to as the Domestic Gag Rule and have drawn immense criticism from a number of health professional associations, as they argue that such policies directly threaten the provider-patient relationship because they prevent providers from fulfilling their ethical obligation to inform pregnant women about all of their medical options during pregnancy, including but not limited to abortion. These organizations include the American Medical Association, which filed a petition to overturn the Domestic Gag Rule policy that the US Supreme Court has recently agreed to hear.

Trump-era changes to Title X funding resulted in a number of consequences—Planned Parenthood, the nation’s largest provider of sex education and a leading sexual and reproductive health provider, amongst others, withdrew from Title X, calling the gag rule “unethical and dangerous.” Furthermore, an estimated one in five Title X sites no longer accept funding from Title X, resulting in budget shortfalls that will impact their ability to serve their patients. In sum, the Trump administration’s Domestic Gag Rule has endangered family planning care for 1.6 million women nationwide and restricted Title X’s network capacity by 46 percent nationwide and up to 100 percent in some states.

In consequent appellate court rulings, conflicts persist about the legality of these changes to the Department of Health and Human Services (HHS) rule; while the 9th Circuit Court of Appeals upheld the Gag Rule, the 4th Circuit found that the decision was “flawed” and held that the rule was “both arbitrary and capricious and contrary to law.” Due to these rulings, the gag rule was suspended in Maryland, in the jurisdiction of the 4th Circuit, but persists elsewhere in the United States. These policies—in addition to exacerbating disparities in access to reproductive health care among low-income, rural, and women of color—also discourage open, honest conversation between patients and their health providers and would restrict funding for some of the most robust systems of reproductive health care in the nation, which provided reproductive health care services for more than four million people annually before 2016.

President Biden has asked the HHS to review the Trump administration’s rule to overhaul the Title X family planning program, although no action has been taken yet to change the policy. Immediate action on the part of HHS to reverse the Domestic Gag Rule would presumably render the US Supreme Court hearing moot and increase access to reproductive services for women depending on Title X-funded providers.

ACA Contraceptive Coverage Mandate “Conscience Exemptions,” Abortion Coverage Billing Regulations

The Trump administration also made changes to the ACA, which helps 63 million US women access birth control without copayments; the changes allow any employer, school, insurance plan, or individual to deny access to the no-cost contraceptives on the basis of religious or moral objection. Despite strong opposition from women’s health advocates, the US Supreme Court upheld the administration’s “conscience” exemptions of the ACA’s contraceptive mandate on July 13, 2020. This ruling disproportionately impacts low-income women and their families, as they are less likely to use contraceptives due to high out-of-pocket costs. Additionally, the Guttmacher Institute found that 58 percent of oral contraceptive users in the US indicated needing the pill, at least in part, for a purpose other than contraception; among the reasons for using oral contraception are regulating periods, preventing menstrual-related migraines, and controlling chronic health conditions such as endometriosis. Thus, removing insurance coverage for these services impacts women’s ability to manage, alleviate, or treat a variety of medical issues. By removing this exemption, the Biden administration can restore this basic women’s health insurance coverage benefit.

Health insurance protections were further impacted during the Trump administration via changes that forced health insurers offering coverage on ACA Marketplaces to bill consumers separately for insurance premiums covering abortion services. These restrictions have led to increased confusion and administrative costs, which some experts predict could lead to elimination of abortion services from health plans and impact the coverage of 3.4 million enrollees. Compounding these barriers, pregnant women seeking abortion care who are denied coverage experience an emotionally and financially distressing conundrum: They must decide between continuing unwanted pregnancies or enduring high personal costs and debt (the estimated cost of an abortion ranges from $400 to $1,650 and above, disproportionately impacting low-income women). This exacerbates existing disparities in care, as the ability to access abortion has been shown to be linked to a woman’s economic means. The Biden administration has the opportunity to restore the original regulation and intent of the ACA by reestablishing the contraceptive mandate for employers and reaffirm patient protections for abortion services.

A Flurry Of Anti-Choice Action At The State Level

As Democrats currently hold the majority in the House and Senate as well as control the Executive branch, albeit in a highly partisan climate, many conservative-led state legislatures appear to be using the current state legislative sessions as opportunities to introduce bills limiting reproductive choice at breakneck speeds. Nationally, in the 2021 state legislative session alone, more than 150 anti-abortion bills have been introduced, posing a significant threat to women’s reproductive health and right to choose.

Notable state legislative attempts include one proposed Arizona bill that would allow women receiving abortions and their medical providers to be charged with murder and another that would ban medical providers from performing an abortion on a fetus with a genetic abnormality such as Down syndrome. In South Carolina, the first piece of legislation introduced in the Senate would ban most abortions once a medical provider can detect a fetal heartbeat; it has since been temporarily blocked by a district court and is now awaiting a ruling on whether to impose an injunction from a federal judge, foreshadowing a turbulent and rapidly changing legislative landscape. In Texas, proposed anti-abortion bills range from total bans on abortion to appointing attorneys to represent fetuses when minors report to a judge for an abortion without formal parental consent.

In Montana alone, more than 60 bills have been introduced to restrict abortion access, such as one that would ban abortions after 20 weeks; the Republican legislator who introduced that bill acknowledged her hope that it would lead the US Supreme Court to “revisit” the landmark Roe v. Wade, which established women’s constitutional right to safe and legal abortion. Additionally, Tennessee lawmakers proposed a bill that would allow a biological father to block a woman from getting an abortion. Exhibit 1 below outlines these examples of recent state action to thwart reproductive rights.

Exhibit 1: Key anti-choice state legislative action in 2021

State

Bill Number

Summary

Arizona

House Bill 2650

Would allow women who receive an abortion and their health care providers to be charged with first-degree murder (punishable by the death penalty).

Arizona

Senate Bill 1457

Would ban providers from performing an abortion if the fetus has a genetic abnormality.

Arkansas

Senate Bill 6

Would ban nearly all abortions in the state except those necessary to save the life or preserve the health of the fetus or mother.

Montana

House Bill 136

Would ban abortions after 20 weeks of pregnancy.

South Carolina

Senate Bill 1

Would ban abortions once a provider can detect a fetal heartbeat with few exceptions.

Tennessee

Senate Bill 494

Would allow biological fathers to stop an abortion.

Texas

House Bill 69

Would ban abortions after 12 weeks of pregnancy.

Texas

House Bill 1171

Would require the fetus to be appointed an attorney in the case of a minor petitioning for an abortion in front of a judge.

Texas

House Bill 3326

Would ban and criminalize most abortions punishable by the death penalty with exemptions for ectopic pregnancies that put the woman’s life is at risk.

Source: Authors’ analysis.

Amidst a pandemic that has claimed the lives of hundreds of thousands and destroyed the livelihood of millions, this flurry of anti-choice state bills reflects a mismatch between state legislatures’ priorities and the reality of their populations’ pressing needs, such as COVID-19 mitigation strategies, vaccination distributions efforts, economic relief, and pandemic mental health services. The numerous anti-abortion bills, most of which do not hold legal muster, also make it clear that there is a superseding presumptive interest at the state level in sparking a legal battle to be appealed to the US Supreme Court, with the intent of incrementally dismantling the rights created through Roe v. Wade. While recent similar attempts at the US Supreme Court through cases (such as June Medical Services LLC v. Gee, which considered whether a Louisiana state law placing hospital-admission requirements on abortion clinic doctors was unconstitutional) have made limited headway, the most recent makeup of the US Supreme Court—many of whom have indicated anti-choice leanings in the past—and the volume of state-level anti-abortion bills may create a perfect storm jeopardizing a woman’s right to choose at the national level.

The stakes related to a woman’s right to choose are high; therefore, it’s vital that the Biden-Harris administration remain committed to restoring the hard-fought gains in reproductive rights. We call on the administration to act quickly and decisively to not only reverse the detrimental policies of the previous administration but also to fortify federal protections for accessible and safe services in the face of mounting state-level and legal threats to reproductive rights and justice.

https://www.healthaffairs.org/do/10.1377/hblog20210326.802027/full

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