By Leslie Francis, originally posted on OUPblog.
For the over 40 years since the U.S. Supreme Court’s decision in Roe v. Wade that people have a constitutionally protected interest in deciding whether or not to reproduce, reproductive rights have been a persistent flashpoint of controversy in the United States. The controversy has been characterized by more heat than light, however. It features little attention to why pregnancies occur, how unwanted pregnancies might successfully be prevented, and what supports women’s need for healthy pregnancies and care for their children.
First there was the Hyde Amendment prohibiting the expenditure of federal Medicaid funds for abortions. The Amendment has been renewed every year since 1977, softened only to permit funding when the women’s life is endangered or the pregnancy resulted from rape or incest. The current Congress plans to make it “permanent” in the sense that it will continue without annual renewal. The Amendment’s reach now extends to health care coverage provided for federal employees, for people serving in the military and their families, for Native Americans and Alaskan Natives, and for inmates in federal prisons.
Then, there was the so-called “Mexico City” policy forbidding family planning services world-wide from furthering abortions in any way—even telling patients about the option—if they accept funding from the U.S. government. According to a World Health Organization study, this policy may have had the perverse effect of actually increasing abortions, if family planning agencies forego U.S. funding because they cannot make the required assurances—and thus have fewer resources available for pregnancy prevention. Critics claim that the study is based on flawed data, however. All Republican presidents since President Reagan in 1980 have ordered implementation of the policy; all Democratic presidents have rescinded it. One of President Trump’s first executive orders reinstated the policy but went far further: it now will apply to any health agency receiving U.S. funding, including those providing HIV treatment.
Most recently, there’s been the Affordable Care Act’s inclusion of contraceptive coverage as a required essential health benefit. Churches and other religious institutions were exempted from the requirement on the basis of the constitutional protection of the free exercise of religion. This included religiously owned institutions such as schools and universities, hospitals, and nursing homes. The Supreme Court’s Hobby Lobby decision expanded this free exercise reasoning to cover closely held for-profit corporations whose owners had faith-based opposition to contraception. Anyone working for these employers who wishes contraceptive coverage will need to get it from a third party rather than their employer.
All along, the courts have been at the center of efforts to undo Roe v. Wade. Social conservatives have been galvanized to support or oppose potential nominees to the bench based on their likely views about reproductive rights. Neil Gorsuch, President Trump’s nominee for the U.S. Supreme Court, voted in favor of exempting religious employers from the contraceptive mandate. In the Tenth Circuit’s decision in the Hobby Lobby case, he wrote that religious owners of for-profit businesses should be protected from what they regarded as complicity in an immoral act, that of providing their employees with insurance coverage for contraception. Judge Gorsuch has never ruled in an abortion case, so his views on that must be extrapolated from his other opinions and writings, including his well-known opposition to physician aid in dying.
If all of the other U.S. Supreme Court justices remain on the bench and don’t change their views, it will take a second appointment to the Court to change the balance to opposition to Roe v. Wade itself. Just last term, the Court ruled 5-3 against Texas’s statutes requiring abortion clinics to be fully equipped as surgery centers and to have physicians with admitting privileges at hospitals within thirty miles. In this Whole Women’s Health decision, the majority reasoned that the restrictions placed a substantial burden on women’s reproductive rights but that Texas had no record evidence that the restrictions were needed to protect women’s health.
If the Trump administration and the current Congress have their way, however, state restrictions on abortion are likely to flourish and may ultimately prevail. Far less likely, however, is careful ethical consideration of what these changes may mean. Even now, many U.S. women find abortion beyond their reach either economically or geographically. These women and their children face what may be life-limiting challenges. The U.S. lacks paid family leave; any job protection for unpaid family leave is limited both in time and by the size of the employer. Housing subsidies are difficult to obtain and many families pay more than half of their income for substandard housing. Child care workers are underpaid; good child care is difficult to find and very expensive. In states that have not expanded Medicaid, healthy women who do not earn enough to qualify for subsidies on the health insurance exchanges may have no insurance at all. If proposals to repeal the Affordable Care Act move forward, many other women may lack access to health insurance and the means to pay for contraception or other forms of health care. Mental health and substance abuse treatment may become increasingly unavailable, potentially increasing the risks of unwanted and unhealthy pregnancies. Proposals to move Medicaid and the related program for children, CHIP, to block grants may significantly reduce the funding for care that is now available.
In the myopia of single-issue politics about abortion, the life prospects of women and children have been marginalized. Justice Ginsburg’s insistence that reproductive rights are fundamental to equality has not drawn the attention it deserves. Without attention to why abortion and contraception matter, we may expect inequality in the United States only to deepen over the next few years.
Leslie Francis is Distinguished Professor of Philosophy and Distinguished Alfred C. Emery Professor of Law at the University of Utah. Leslie is also the editor of The Oxford Handbook of Reproductive Ethics.