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Roe v. Wade will mark its 41st birthday later this month, amid ever-increasing assaults on reproductive rights across the nation. According to the latest report from the Guttmacher Institute, states have imposed a staggering 205 abortion restrictions between 2011 and 2013. That legislation has attacked access to abortion from all angles — targeting providers and clinics, driving up the cost of abortion for the women who need it, making women travel farther and wait longer to get medical care, and outright banning the procedure. Since 2000, the number of states that Guttmacher defines as being “hostile” to abortion rights has spiked from 13 to 27.
That’s left abortion rights advocates on the other side, working hard to stem the tide of anti-choice attacks. Constantly warding off restrictive legislation hasn’t left much space for proactive policies to expand women’s reproductive freedom, like expanding access to maternity care or making family planning services more accessible to low-income women. Most of the headlines about abortion issues are bleak.
But there may be a shift on the horizon.
As the new year kicks off, the pro-choice community is beginning to lay the groundwork for a new kind of strategy. On the state level, they’re beginning to push for legislation that not only rolls back anti-choice restrictions, but also expands health care opportunities for women and their families. They’re striking a delicate balance between finding common ground with social conservatives — like focusing on preventative care and maternal health outcomes — while maintaining that abortion is also an important aspect of reproductive health. And grassroots activists are committed to nudging the dial forward on issues that have long been considered too controversial for the political sphere.
We’re starting to define what a new agenda for reproductive freedom looks like in the 21st century.”
“The momentum has shifted,” Ilyse Hogue, the president of NARAL Pro-Choice America, told ThinkProgress in an interview. “Americans as a whole have had enough. We’re not just going to sit idly by and fight defensive fights and take these attacks on reproductive freedom sitting down. We’re starting to define what a new agenda for reproductive freedom looks like in the 21st century.”
A new agenda for reproductive freedom
So what does that agenda look like? In a political atmosphere that’s long segregated women’s health care from the rest of policy as a “culture war issue,” it involves a more comprehensive approach to reproductive freedom.
“Abortion access is ground zero of reproductive freedom; without it, we don’t have autonomy and self-determination over our lives. But it’s not as though our reproductive lives start and end there,” Hogue noted. “There’s a whole landscape out there of policies that have lagged far behind.”
Those policies include other health-related initiatives, like ensuring that women have access to family planning services and maternity care. They involve tackling sexual health issues, like cracking down on domestic abuse and rape. But they also include economic policies to help ensure that women have the resources to direct the courses of their lives and provide for their families — like equal pay legislation, affordable child care services, and efforts to prevent workplace discrimination. Rather than framing reproductive rights as a women’s issue, groups like NARAL are working on making the point that they’re also inextricable from the nation’s economic agenda.
We want women to know that there’s a path, there’s a fight being made on these subjects.”
On a national stage, some lawmakers have already made the shift to talking about women’s full equality in this way. House Democratic Leader Nancy Pelosi (D-CA) and Sen. Kirsten Gillibrand (D-NY) were particular champions of this fight in 2013, attempting to reposition women’s economic success as a national priority. “We want women to know that there’s a path, there’s a fight being made on these subjects,” Pelosi told ThinkProgress in July.
State legislatures starting to lead the way
Pelosi has focused on workplace equality as a women’s issue without necessarily coupling that effort with other areas of women’s rights, like abortion rights or sexual assault prevention. But state lawmakers are beginning to propose sweeping packages of women’s health legislation that include the full range of those issues.
For instance, Gov. Andrew Cuomo (D) pushed an ambitious Women’s Equality Act — which included measures to advance pay equity, outlaw discriminatory practices against women in the workplace and the housing sector, tighten penalties for sexual crimes, and reaffirm reproductive rights — in 2013. It ultimately failed to pass because some members of the legislature wouldn’t agree to its abortion-related provision, but the female members of the Assembly’s Democratic majority are ready to try again. They’re already urging Cuomo to take up the full version of the legislation again this year. They’re also framing these issues broadly, pointing out that advancing women’s equality is more than access to gender-specific health care. “We believe it is important to look at all of those barriers women face and to make sure we include issues such as access to affordable, high-quality child care, paid family leave and eldercare so that New York’s women and families have every opportunity for a dynamic future,” a statement from the Democratic Women Assembly Members explains.
State lawmakers are beginning to propose sweeping packages of women’s health legislation.
Pennsylvania probably doesn’t immediately come to mind as a state that’s committed to protecting reproductive rights — Guttmacher rates the state as “hostile” to abortion, since it’s enacted several harsh restrictions on the procedure — but lawmakers are making a very similar push there. In December, a bipartisan group of lawmakers introduced the Pennsylvania Agenda for Women’s Health, a package of legislation that includes measures to strengthen workplace protections for pregnant women and nursing mothers, prevent anti-abortion harassment at health clinics, advance pay equity, and protect victims of domestic violence.
“The Pennsylvania Agenda for Women’s Health represents a genuine cross-section of issues and concerns facing women today,” Rep. Dan Frankel (D-PA), one of the lawmakers heading up the new initiative, explained when it was first introduced. “This is a comprehensive collection of bills based on what women want in regard to their own health.”
Just this week, a pro-choice coalition in Virginia unveiled the 2014 Healthy Families Legislative Agenda, another broad push to advance women’s health from this angle. After a high-profile gubernatorial race that resulted in the election of pro-choice Terry McAuliffe, reproductive rights activists are eager to begin undoing some of the damage to women’s rights in recent years. In addition to pushing to repeal the state’s forced ultrasound laws and harsh restrictions on abortion clinics, the coalition is also advocating for expanding Medicaid and increasing health coverage for low-income pregnant women.
“We are re-orienting ourselves a bit more toward offense and trying to take advantage we see in this immense backlash to these really radical attacks on women’s health care access,” Anna Scholl, the Executive Director of ProgressVA, explained to ThinkProgress. “I don’t want to minimize or underestimate the size of the hole that we have to dig ourselves out of… But we are taking a much more holistic approach to choice and to women’s health, putting together an agenda that we think will support families across the Commonwealth in every one of their childbearing positions.”
Are national lawmakers finally ready to go on the offense?
The end of 2013 signaled a potential shift in the way that Washington approaches abortion rights, too. Of course, getting pro-choice legislation past both chambers of Congress is far less likely than beginning to turn the tide at the state level. But national lawmakers are indicating that they may not be afraid to take a bold stance in favor of reproductive rights. In November, a group of Senate Democrats introduced the Women’s Health Protection Act of 2013, the first piece of national legislation in nearly a decade that is intended to protect — rather than dismantle — abortion rights. The Women’s Health Protection Act would prevent states from enacting medically unnecessary restrictions on abortion.
“This assault on essential, constitutionally protected rights has gone on too long,” Sen. Richard Blumenthal (D-CT), one of the co-sponsors of the legislation, explained in an op-ed when it was first unveiled. “We are introducing the Women’s Health Protection Act of 2013 this week to end it, once and for all.”
When you actually take a strong, courageous stand on abortion access as part of a full suite of reproductive freedom, voters reward you.”
NARAL’s Hogue points to Wendy Davis, a relatively unknown state lawmaker who rose to national fame after fighting to defeat stringent anti-abortion legislation in Texas, as evidence that the American public is ready for more elected officials to go down this path. “When you actually take a strong, courageous stand on abortion access as part of a full suite of reproductive freedom, voters reward you. We’re going to see more of that, and we’re going to incentivize more of that,” she noted.
And grassroots activists are preparing to push lawmakers even further. The hostile environment around abortion has made elected officials wary to take any strong stance on expanding access to the procedure, particularly if that results in taxpayer dollars financing abortion. For nearly 40 years, the Hyde Amendment has outlawed federal funding for abortion, preventing low-income women who rely on Medicaid from using their insurance coverage to help pay for the procedure — and Democrats have largely refrained from doing anything to get rid of that policy. But this past fall, reproductive justice activists formed All*Above All, a coalition that hopes to bring a renewed momentum to the fight to restore abortion access to economically disadvantaged individuals.
“All*Above All pushes back on the long-running urban legend that funding abortion coverage is some kind of political third rail,” Kierra Johnson, Choice USA’s executive director, explained in a statement about the coalition’s launch. “This campaign offers people a fresh approach to declare their support for bold action to change these policies.”
Looking to 2014 and beyond
“I think we’re going to sort of hit our stride in 2014,” Hogue told ThinkProgress. “In 2014, we’re going to see a lot more offensive legislation. We’re going to start to see states really experiment with what policy packages look like that actually support women at all stages of their reproductive life, and we’re going to demand what we need to be thriving, equal members of American society.”
But change is slow, and after such a dramatic recent assault on women’s bodily autonomy, it will take time to pull the country back to the other direction. As ProgressVA’s Scholl noted, there’s still a lot of damage to undo. In deeply red states like Texas, much of that damage will only continue to worsen this year. And, of course, the pro-choice community may be mobilizing for 2014 — but so are abortion opponents.
According to Hogue, the shift will begin in 2014 and get even more dramatic in 2016 and 2018. It will take several trips to the ballot box to counteract the power that the Tea Party built up over the past three years. But there’s reason to believe that the American people, who have repeatedly rejected legislative attempts to restrict abortion, are ready for a dramatically different approach to reproductive freedom.
“It’s going to take longer than more election cycle to re-center the country where the actual center is, but make no mistake — this shift has started to happen,” she noted. “The pendulum will be swinging back in this direction for quite some time.”
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By ERIK ECKHOLM
A three-year surge in anti-abortion measures in more than half the states has altered the landscape for abortion access, with supporters and opponents agreeing that the new restrictions are shutting some clinics, threatening others and making it far more difficult in many regions to obtain the procedure.
Advocates for both sides are preparing for new political campaigns and court battles that could redefine the constitutional limits for curbing the right to abortion set by the 1973 Roe v. Wade decision and later modifications by the Supreme Court.
On Monday, in a clash that is likely to reach the Supreme Court, a federal appeals court in New Orleans will hear arguments on a Texas requirement that abortion doctors have admitting privileges at local hospitals — a measure that caused one-third of the state’s abortion clinics to close, at least temporarily.
Advocates for abortion rights, taking heart from recent signs in Virginia and New Mexico that proposals for strong or intrusive controls may alienate voters, hope to help unseat some Republican governors this year as well as shore up the Democratic majority in the United States Senate.
Anti-abortion groups aim to consolidate their position in dozens of states and to push the Senate to support a proposal adopted by the Republican-controlled House for a nationwide ban on most abortions at 20 weeks after conception.
“I think we are at a potential turning point: Either access to abortion will be dramatically restricted in the coming year or perhaps the pushback will begin,” said Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University.
The anti-abortion groups, for their part, feel emboldened by new tactics that they say have wide public appeal even as they push the edges of Supreme Court guidelines, including costly clinic regulations and bans on late abortions.
“I’m very encouraged,” said Carol Tobias, president of National Right to Life. “We’ve been gaining ground in recent years with laws that are a stronger challenge to Roe.”
“I think it is more difficult to get an abortion in the country today,” she said.
The new laws range from the seemingly petty to the profound. South Dakota said that weekends and holidays could not count as part of the existing 72-hour waiting period, meaning that in some circumstances women could be forced to wait six days between their first clinic visit and an abortion.
Laws passed last year by Arkansas and North Dakota to ban abortions early in pregnancy, once a fetal heartbeat was detected, were hailed by some as landmarks if quickly rejected by federal courts. But bans on abortion at 20 weeks, also an apparent violation of constitutional doctrine, remain in force in nine states.
In Roe and later decisions, the Supreme Court said that women have a right to an abortion until the fetus is viable outside the womb — at about 24 weeks of pregnancy with current technology — and that any state regulations must not place an “undue burden” on that right.
In 2013 alone, 22 states adopted 70 different restrictions, including late-abortion bans, doctor and clinic regulations, limits on medication abortions and bans on insurance coverage, according to a new report by the Guttmacher Institute, a research group that supports abortion rights.
Anti-abortion legislation in the states exploded after the major conservative gains in the 2010 elections, the report said, resulting in more than 200 measures in 30 states over the last three years.
Americans United for Life, an anti-abortion group, has a similar count, describing the flood of new laws as “life-affirming legislation designed to protect women from the harms inherent in abortion.”
Twenty-four states have barred abortion coverage by the new health exchanges and nine of them forbid private insurance plans, as well, from covering most abortions.
A dozen states have barred most abortions at 20 weeks of pregnancy, based on a theory of fetal pain that has been rejected by major medical groups. Such laws violate the viability threshold and have been struck down in three states, but proponents hope the Supreme Court will be open to a new standard.
A partial test is expected this month, when the Supreme Court announces whether it will hear Arizona’s appeal to reinstate its 20-week ban, which was overturned by federal courts.
Many legal experts expect the court to decline the case, but this would not affect the status of similar laws in effect in Texas and elsewhere. Still, those on both sides are watching closely because if the court does take it, the basis of four decades of constitutional law on abortion could be upended.
“If they take the Arizona case, it seems like at least four of the justices are willing to reconsider the viability line as the point at which states can ban abortions,” said Caitlin Borgmann, an expert on reproductive rights at the City University of New York School of Law.
The many strands of attack came together in Texas, which in a tumultuous special session in July required doctors performing abortions to have local hospital admitting privileges, imposed costly surgery-center standards on abortion clinics, sharply limited medication abortions and adopted a 20-week ban.
The admitting privileges requirement immediately forced about one-third of some 30 clinics in the state to stop performing abortions and left much of South Texas without any abortion clinics.
A federal judge called the rule medically unnecessary and halted enforcement, but the state appealed successfully to the United States Court of Appeals for the Fifth Circuit to reinstate it pending a trial.
On Monday, that appeals court, in New Orleans, will hear arguments. The case against the rule, being argued by groups including Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union, was supported in a brief by the American Medical Association and the American College of Obstetricians and Gynecologists, which said it served no valid purpose.
Texas officials asserted that the requirement promotes safety and that any burdens on women have been exaggerated. Some Supreme Court justices have already said that they expect eventually to hear the case.
Courts have temporarily blocked similar admitting-privilege requirements in Alabama, Mississippi, North Dakota and Wisconsin.
Another provision of the Texas law with potentially vaster impact, set to take effect in September, imposes surgery-center standards for clinics, even those that perform only the safest early-stage procedures or nonsurgical medication abortions. The requirement could leave the state with as few as eight abortion centers, according to Planned Parenthood.
“Any one of the restrictions passed in the last several years would be bad, but taken together, we are witnessing a catastrophe for Texas women,” said Cecile Richards, president of the Planned Parenthood Federation of America.
Amid all the setbacks, abortion rights groups say they see encouraging signs.
A referendum to impose a 20-week ban in Albuquerque was defeated. Although Texas adopted some of the country’s most stringent controls, State Senator Wendy Davis’s filibuster in June energized women and led to her campaign for governor.
In Virginia, these groups say, Attorney General Kenneth T. Cuccinelli II’s strong anti-abortion stance became a liability, contributing to his defeat in the governor’s race.
“I honestly believe we have shifted the momentum,” said Ilyse Hogue, the president of Naral Pro-Choice America.
Ms. Hogue predicted that candidates less hostile to abortion rights would put up strong races against Republicans running for governor in, for example, Ohio, Michigan, Wisconsin and Kansas.
Ms. Tobias, of National Right to Life, responded, “The other side is getting more people activated, but so are we.”
The proliferation of state restrictions is recreating a legal patchwork.
“Increasingly, access to abortion depends on where you live,” said Jennifer Dalven, director of the reproductive freedom project at the American Civil Liberties Union.
She added, “That’s what it was like pre-Roe.”
THE biggest health care crisis in America right now is not the inexcusably messy rollout of Obamacare.
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Nicholas D. Kristof
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No, far more serious is the kind of catastrophe facing people like Richard Streeter, 47, a truck driver and recreational vehicle repairman in Eugene, Ore. His problem isn’t Obamacare, but a tumor in his colon that may kill him because Obamacare didn’t come quite soon enough.
Streeter had health insurance for decades, but beginning in 2008 his employer no longer offered it as an option. He says he tried to buy individual health insurance but, as a lifelong smoker in his late 40s, couldn’t find anything affordable — so he took a terrible chance and did without.
At the beginning of this year, Streeter began to notice blood in his bowel movements and discomfort in his rectum. Because he didn’t have health insurance, he put off going to the doctor and reassured himself it was just irritation from sitting too many hours.
“I thought it was driving a truck and being on your keister all day,” he told me. Finally, the pain became excruciating, and he went to a cut-rate clinic where a doctor, without examining him, suggested it might be hemorrhoids.
By September, Streeter couldn’t stand the pain any longer. He went to another doctor, who suggested a colonoscopy. The cheapest provider he could find was Dr. J. Scott Gibson, a softhearted gastroenterologist who told him that if he didn’t have insurance he would do it for $300 down and $300 more whenever he had the money.
Streeter made the 100-mile drive to Dr. Gibson’s office in McMinnville, Ore. — and received devastating news. Dr. Gibson had found advanced colon cancer.
“It was heartbreaking to see the pain on his face,” Dr. Gibson told me. “It got me very angry with people who insist that Obamacare is a train wreck, when the real train wreck is what people are experiencing every day because they can’t afford care.”
Dr. Gibson says that Streeter is the second patient he has had this year who put off getting medical attention because of lack of health insurance and now has advanced colon cancer.
So, to those Republicans protesting Obamacare: You’re right that there are appalling problems with the website, but they will be fixed. Likewise, you’re right that President Obama misled voters when he said that everyone could keep their insurance plan because that’s now manifestly not true (although they will be able to get new and better plans, sometimes for less money).
But how about showing empathy also for a far larger and more desperate group: The nearly 50 million Americans without insurance who play health care Russian roulette as a result. FamiliesUSA, a health care advocacy group that supports Obamacare, estimated last year that an American dies every 20 minutes for lack of insurance.
It has been a year since my college roommate, Scott Androes, died of prostate cancer, in part because he didn’t have insurance and thus didn’t see a doctor promptly. Scott fully acknowledged that he had made a terrible mistake in economizing on insurance, but, in a civilized country, is this a mistake that people should die from?
“Website problems are a nuisance,” Dr. Gibson said. “Life and death is when you need care and can’t afford to get it.”
The Institute of Medicine and the National Research Council this year ranked the United States health care system last or near last in several categories among 17 countries studied. The Commonwealth Fund put the United States dead last of seven industrialized countries in health care performance. And Bloomberg journalists ranked the United States health care system No. 46 in efficiency worldwide, behind Romania and Iran.
The reason is simple: While some Americans get superb care, tens of millions without insurance get marginal care. That’s one reason life expectancy is relatively low in America, and child mortality is twice as high as in some European countries. Now that’s a scandal.
Yet about half the states are refusing to expand Medicaid to cover more uninsured people — because they don’t trust Obamacare and want it to fail. The result will be more catastrophes like Streeter’s.
“I am tired of being the messenger of death,” said Dr. Gibson. “Sometimes it’s unavoidable. But when people come in who might have been saved if they could have afforded care early on, then to have to tell them that they have a potentially fatal illness — I’m very tired of that.”
Streeter met with a radiologist on Thursday and is bracing for an arduous and impoverishing battle with the cancer. There’s just one bright spot: He signed up for health care insurance under Obamacare, to take effect on Jan. 1.
For him, the tragedy isn’t that the Obamacare rollout has been full of glitches, but that it may have come too late to save his life.
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By Lawrence Hurley, Reuters
The U.S. Supreme Court on Monday dismissed a case concerning a state law in Oklahoma that cracked down on the use of the abortion-inducing drug RU-486, meaning a state court ruling invalidating the statute remains intact.
The high court had been waiting for the Oklahoma Supreme Court to clarify its December 2012 ruling that voided the law before deciding on whether to rule on the case. Last week, the state court issued a new opinion explaining its reasoning in more detail.
The high court\’s latest action means the Oklahoma Supreme Court ruling is final. That ruling invalidated a state law it said had the effect of banning abortion-inducing drugs altogether.
The Oklahoma court said in its first ruling on the law in December 2012 that the measure violated a 1992 U.S. Supreme Court ruling that set the standard for how courts should weigh abortion restrictions.
In June, the Supreme Court said it would review the case but first asked the state court to clarify what exactly the state law prohibits and whether it conflicts with U.S. Food and Drug Administration guidance.
The 2011 law prevents doctors from \”off-label\” use of the drug mifepristone, also known as the \”abortion pill.\” It is sold by Danco Laboratories as Mifeprex, which is used with other medications to induce abortion up to seven weeks into a pregnancy.
The drug was approved by the FDA in 2000 subject to the instructions contained on the label.
The \”off-label\” use prohibited by the law developed later and allowed less physician oversight when the drug is used.
Opponents of the law, who support abortion rights, say the banning of off-label uses effectively prevented all medication-based abortions.
The last time the Supreme Court took up a related issue was in 2007 when it ruled 5-4 to uphold a federal law that banned a late-term abortion procedure.
Under the Supreme Court\’s 1992 precedent set in a case called Planned Parenthood v. Casey, an abortion regulation can be legal as long as it does not impose an \”undue burden\” on women seeking the procedure.
In that case the justices reaffirmed the landmark 1973 Roe v. Wade decision in which the court first held that women had the right to seek an abortion.
In a one-line order on Monday, the Supreme Court said the Oklahoma case was dismissed as \”improvidently granted.\”
The case is Cline v. Oklahoma Coalition for Reproductive Justice, U.S. Supreme Court, No. 12-1094.
In related action on Monday, opponents of a new Texas law that imposes new abortion restrictions asked the high court to reimpose a district court stay on a part of the law that prevents doctors from performing abortions unless they have admitting privileges at a nearby hospital.
The high court has not yet decided how to respond to the request.