Editor’s note: This post is part of a series stemming from the Fifth Annual Health Law Year in P/Review event held at Harvard Law School on Monday, January 23rd, 2017. The conference brought together leading experts to review major developments in health law over the previous year, and preview what is to come.
American political, social, and religious history has made abortion a deeply partisan issue. This despite the reality that many women (as well as trans and gender non-conforming individuals) from diverse racial, cultural, class, and religious backgrounds regularly access abortion-related services. The outcome of the 2016 elections has set into motion an expected but nonetheless deeply damaging anti-abortion agenda that is slowly taking form in the Trump administration’s early days — aided by the Republican majority House and Senate. These early moves signal that the new administration aims to roll back gains made toward reproductive justice in 2016.
The attack on abortion rights and, in turn, reproductive justice, by this administration is no surprise. The GOP Platform released during the elections makes many references to defunding or restricting abortion services. The document specifically attacks key victories for reproductive health including the 2016 Whole Woman’s Health v. Hellerstedt Supreme Court decision overturning key provisions of the 2013 Texas House Bill 2. The law required that doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic, and abortion providers comply with guidelines to become Ambulatory Surgical Centers. The Supreme Court found the regulations to be unconstitutional because they result in substantial obstacles in the path of women seeking pre-viability abortions — contrary to the claim made by the Texas Department of State Health Services that the laws make abortions safer.
In her Whole Women’s Health concurrence, Ginsburg stated that the regulations “do little or nothing for health, but rather strew impediments to abortion.” The GOP Platform, however, condemns Whole Women’s Health as an “activist decision…striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.” They go even further to assert that “numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.” This language is a reference to numerous discredited studies that claim that abortion has negative health consequences frequently referenced by conservatives to justify regressive abortion laws.
The Threat To Health From A ‘Tough On Crime’ Stance
It is also important to consider the interactions between the administration’s anti-abortion agenda with the ramp-up of a “tough on crime” policy agenda, which will likely deepen existing health disparities: especially for women who may get entangled in the criminal justice system while pregnant. Poor women, many of whom are women of color, have long been prosecuted and punished for pregnancy-related crimes including drug use during pregnancy and attempts at self-induced abortion. Nearly every state in the United States has prosecuted pregnant women for a reproductive crime whether or not there are specific laws criminalizing aspects of pregnancy. In 2016, Purvi Patel became yet another example of a woman who in desperation attempted to self-abort. After delivering her fetus, Patel went to the hospital for medical care and was subsequently arrested, convicted, and given a 20-year prison sentence (she ended up serving three years after an appeal). It is easy to imagine that more state and local leaders, animated by the Trump Administration’s tough on crime posturing, may be emboldened to pursue additional prosecutions against women in the reproductive health context.
The Global Gag Rule
Alongside the domestic struggles to ensure access to reproductive health services, the reinstatement of the Global Gag Rule (GGR) or Mexico City Policy was yet another setback, particularly for global health practitioners focusing on abortion and family planning. The GGR was first enacted by the Reagan administration and prohibited organizations from performing or actively promoting “abortion as a method of family planning” with non-U.S. funding. The policy went far beyond the 1973 Helms Amendment which already prohibited U.S. government monies “to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.” The reinstatement of the GGR was expected — since Reagan’s original policy each Democratic administration has repealed the GGR and each Republican administration reinstates the ban sometimes with slight modification. The Bush administration, for example, exempted President’s Emergency Plan for AIDS Relief from GGR restrictions.
The language used by the Trump administration in his memoranda reinstating the ban states that it will be applied to “global health assistance furnished by all departments or agencies.” This language threatens to apply the GGR restrictions much more widely and, in turn, may have a much broader impact on the provision of crucial reproductive health services to vulnerable populations.
For reproductive justice advocates, much of the next four years will be spent defending against an assault on a range of reproductive health services. For many providers, especially those in developing countries reliant on U.S. government family planning money, the next four years will likely involve turning women away from necessary and often life-saving services. While it is easy to cast these transformations as expected—perhaps even politics as usual—the damage to life and health cannot be underestimated.