“This is such an interesting moment in U.S. history,” Erin Matson, executive director of ReproAction, a six-year-old reproductive justice group, told The Progressive: “At the same moment that the Supreme Court is on the brink of further restricting abortion, President Joe Biden has reluctantly come to support abortion access and has delivered a $6 trillion budget without the Hyde Amendment.”
Matson is referring to the Supreme Court’s decision to hear Dobbs v. Jackson Women’s Health Organization, a challenge to a 2018 law that reduces the timeframe for allowable abortion to fifteen weeks, a month before viability when the fetus is able to survive outside the womb. Should a majority of the Justices rule that bans on pre-viability abortion are Constitutional, it will upend a standard set by Planned Parenthood v. Casey in 1993, in which the court found that states cannot restrict abortion in ways that are “unduly burdensome” before viability.
Unsurprisingly, the definition of undue burden has been contentious. Mandatory waiting periods and counseling to dissuade people from choosing abortion, as well as parental consent or notification requirements and insurance restrictions on coverage, have, for decades, made it difficult for many people to access services. Nonetheless, these roadblocks have been deemed acceptable by courts throughout the country.
“It can be great for people who already have Medicaid, but we also have to ask what regulations will take effect in order to implement the end of Hyde. A lot of reproductive health clinics are not authorized to take Medicaid or federal insurance plans like Tricare, and getting certified by the state can take a long time.”
“The attacks on abortion have not been singularly focused,” says Laurie Bertram Roberts, executive director of the Yellowhammer Fund, an Alabama-based organization dedicated to ensuring that all people have the material supports they need to decide when and how to build their families.
In fact, the pro-choice Guttmacher Institute reports that, since Roe v. Wade was decided in 1973, an astounding 1,313 abortion restrictions have been enacted in a variety of states. Worse, the Institute calls the first five months of 2021 “the most damaging antiabortion state legislative session ever,” with 561 restrictions, including 165 outright bans on the procedure introduced in forty-seven states.
Nonetheless, as Matson indicated, there are several significant glimmers of hope on the horizon. With six anti-abortion justices on the Supreme Court and an abortion case challenging Roe headed there during the next term, pro-choice activists are now turning to Congress, rather than SCOTUS, for enshrining abortion rights into law.
First is the possible repeal of the Hyde Amendment, which for forty-one years has banned federal Medicaid coverage for abortion unless the pregnancy is the result of rape or incest, or will be life threatening if carried to term. According to Planned Parenthood, 20 percent of people of reproductive age, the majority of them Black and Brown, have been impacted by this restriction.
Hyde, however, extends beyond low-income, Medicaid-eligible communities, and limits abortion access for everyone who relies on the federal government for their health coverage: Military personnel, people who are incarcerated, Peace Corps volunteers, federal workers, and those who use the Indian Health Service.
An estimated 95 million adults, 29 percent of the U.S. population, are in this demographic.
The fact that President Biden’s fiscal 2022 budget makes no mention of Hyde—a rider that is typically tacked onto the annual Health and Human Services budget—for the first time since 1993, is being widely lauded. Its advocates say that if the budget passes without Hyde, it will restore coverage for abortion beyond the seventeen states that currently fund it out of local revenue.
What’s more, two proactive, pro-choice bills—the Women’s Health Protection Act and the Equal Access to Abortion Coverage in Health Insurance Act of 2021, better known as the EACH Act—have been introduced in Congress and have garnered support from a wide swath of elected officials. Endorsers of reproductive justice call both bills essential.
As the name implies, the Women’s Health Protection Act will enshrine abortion access into federal law, protecting Roe no matter what the Supreme Court decides, while the EACH Act will ensure that every person who receives health care or health insurance from the federal government has abortion coverage. The Each Act further prohibits political interference by private health insurers to prevent them from denying claims for pregnancy termination.
“We’ve had forty-plus years of bad policy,” says Destiny Lopez, co-president of All* Above All, a seven-year-old, Washington, D.C.-based group working to guarantee that abortion is available to everyone who needs it.
“We’re trying to move the needle on the issue and expand access. In 2014, when we began our campaign, Medicaid funding for abortion was a third-rail issue, but there is now a lot of support for it. Our polling shows that support for reproductive justice crosses race, ethnicity, gender, age, and political party lines,” Lopez continues. “Fairness and equity have broad appeal and most people agree that pregnant people should not be treated differently just because they’re low-income.”
That said, the Yellowhammer Fund’s Laurie Bertram Roberts cautions that support for equality does not necessarily translate into social policy. Case in point: the failure of fourteen Southern and Midwestern states to expand Medicaid eligibility under the Affordable Care Act.
The ACA, Roberts says, allows people with incomes at or below 138 percent of the federal poverty level—$17,775 for a single person and $36,570 for a household of four—to qualify for coverage. “Even though the feds will pick up 90 percent of the tab, these states have dug in their heels and proudly turn people away,” she says.
This makes Roberts somewhat reluctant to push for the repeal of the Hyde Amendment; although she supports it in theory, she sees repeal as insufficient.
“It can be great for people who already have Medicaid,” she explains, “but we also have to ask what regulations will take effect in order to implement the end of Hyde. A lot of reproductive health clinics are not authorized to take Medicaid or federal insurance plans like Tricare, and getting certified by the state can take a long time.”
Roberts has other questions: “How can we make sure that every state has clinics that take Medicaid so people have somewhere to get care?” she asks. “And how do we ensure that the eligibility thresholds for benefits are not so low that someone whose income comes to $800 a month, total, is deemed over-income?”
Lastly, she wonders about reimbursement levels and questions whether the amount provided will be adequate to cover the cost of a medical or surgical abortion.
“Changes mean nothing if there is no access,” Roberts concludes. “Accessing abortion care should not be different in every state. We need to change the entire landscape.”
All* Above All’s Destiny Lopez agrees. “None of these changes is a panacea,” she says. “We’ve known for years that undoing more than forty years of bad precedent will be a marathon, not a sprint. This is the first time in twenty-eight years that a clean, Hyde-free budget has been introduced. We’re clear-eyed about the limitations of repealing Hyde, expanding Medicaid access, and getting pro-choice legislation passed, but we still see this as an historic moment.”