Take Care is pleased to host a symposium on Reproductive Rights and Justice Stories—an important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

When I received my copy of Reproductive Rights and Justice Stories, the first chapter I turned to was Professor Khiara M. Bridges’ about the Hyde Amendment and Harris v. McRae. The Hyde Amendment – the Congressional ban on federal dollars being spent on abortions – is one of the most nefarious and effective tools of the anti-abortion movement. And, as Professor Bridges makes absolutely clear in her chapter, its disproportionate impact based on race and class has made it one of the key issues in the reproductive justice movement. For all of the reasons Professor Bridges highlights in her chapter, it would be impossible today to make the same strategic decision as the lawyers who litigated in Harris did in the 1970s and omit discussion of race and class.

I am in the midst of finishing a book, co-authored by sociologist Carole Joffe, about abortion barriers. The book, to be published early next year by University of California Press, relies on qualitative research into how abortion providers implement the various barriers that legislatures and society put in the way of patients accessing abortion care. For the book, Professor Joffe and I interviewed abortion providers and access allies from every state in the country, as well as the District of Columbia and Puerto Rico. We started almost every interview the same way, asking people what are the greatest barriers to access that their patients face. Almost everyone answered the same way – the Hyde Amendment.

As explained in detail in Professor Bridges’ chapter, the Hyde Amendment is an appropriations bill passed every year by Congress that prohibits the use of federal funds for abortion. The biggest impact of the Hyde Amendment is for Medicaid patients. Medicaid covers every other form of reproductive healthcare for men and women, but because of the Hyde Amendment, carves out abortion. Because Medicaid is a joint state/federal program, states are free to use their own funds on abortion, which sixteen states currently do. However, this means that abortion-seeking patients in 34 states and the District of Columbia cannot use their health insurance for complete spectrum reproductive healthcare.

The effects of this ban are devastating. One of the purposes of Medicaid generally is to prevent indigent people from making the impossible choice between spending their limited dollars on health insurance or other life necessities, such as shelter, clothes, food, and their children. But that’s exactly what the Hyde Amendment means for poor women seeking abortion. As a result, they routinely are forced to, for example, put off paying for utilities, sell whatever they have that has value, or cut back on food in order to get an abortion. Even worse, it is estimated that one quarter of Medicaid patients who would otherwise choose to have an abortion are forced to carry their pregnancies to term, something that has been shown to have devastating consequences on their physical and mental health, economic well-being, and the well-being of their children.

The central thesis of Professor Bridges’ chapter is that, even though the Hyde Amendment creates more of a burden on women of color and indigent women, the litigators who challenged its constitutionality did not pursue these claims. While Professor Bridges shows that their strategy was limited by the ever-narrowing equal protection jurisprudence of the 1970s, this failure to talk about race and class meant that the case overlooked the people most burdened by the law.

This was, as Professor Bridges shows in her chapter, well known at the time and continues to be the case today. Today, three-quarters of abortion patients nationwide are at or below 200% of the poverty line. Moreover, women of color are disproportionately represented among abortion patients, with three in five patients being women of color. As a result of these disparities, abortion access, not merely its legality, has been a key component of the reproductive justice movement for over two decades now.

The growing success of this aspect of reproductive justice means that modern day challenges to Medicaid restrictions do not overlook race and class; rather, race and class are front and center in the movement against the Hyde Amendment.

Take the organization All* Above All, for instance. This organization is the leading group taking on abortion coverage bans nationwide. On the front page of its website, it states clearly: “For too long, the Hyde Amendment has banned Medicaid coverage of abortion, pushing abortion out of reach for poor women, especially women of color and young people.” In all of its campaigns, All* centers the stories and leadership of women of color.

Or consider the EACH Woman Act, which in March was reintroduced in Congress. The bill, which eliminates the Hyde Amendment while also prohibiting state and local interference with private insurance coverage, places issues of reproductive justice front and center. The bill’s introductory findings include the following:

Women of color are disproportionately likely to be insured by the Medicaid program: Nationwide, 32 percent of Black women and 27 percent of Hispanic women aged 15–44 were enrolled in Medicaid in 2017, compared with 16 percent of White women. . . .

Restrictions on abortion coverage have a disproportionate impact on low-income women, women of color, immigrant women, and young women. These women are already disadvantaged in their access to the resources, information, and services necessary to prevent an unintended pregnancy or to carry a healthy pregnancy to term.

Or finally, consider the recently filed challenge to Pennsylvania’s ban on Medicaid funding for abortion. (Full disclosure, I am one of the lawyers representing the abortion clinics in this case.) This case, attempting to overrule the 1985 state precedent that Professor Bridges talks about in her chapter, makes race and class a central part of the lawsuit.

In one of the key paragraphs about the impact of the ban, the complaint states: “The harm imposed by the Pennsylvania coverage ban does not fall evenly upon all women. Restrictions on funding for abortion care particularly harm women of color. This is because women of color are more likely than white women to be poor. In Pennsylvania, 25.8% percent of Black women, 30.5% of Latinx women, and 15.5% of Asian women live in poverty, compared with 10.5% of white women. Additionally, low-income women of color are more likely to rely on Medical Assistance for health care and less likely to be able to afford out-of-pocket costs for their abortion compared to their white counterparts.” The initial court filings in the case includes several affidavits that make this connection clear through demographic literature, social science research, and actual abortion patient stories.

In other words, the movement has learned the lesson that Professor Bridges so carefully lays out in her chapter. Race and class are intricately entwined with the Hyde Amendment, and no advocacy on the issue can ignore this fact. The Hyde Amendment still exists in most places around the country, but hopefully the reproductive justice lens will hasten its demise.

Absent from this post so far is one other element of Professor Bridges’ chapter -- her discussion of the Harris litigators shying away from a sex discrimination lens in the case. On this point, unlike the issues of race and class, advocacy has not advanced as far.

As Professor Bridges explains, the litigators and the abortion rights movement more generally were at odds over whether to claim that the Hyde Amendment was a form of sex discrimination. After all, the prohibition of Medicaid funds means that all men’s reproductive health care is covered while a key part of women’s is carved out. This argument is straightforward and powerful, but the worry was that making this argument would hinder the chances the Equal Rights Amendment would pass because, as the chapter recounts, many people who supported the ERA were opposed to abortion.

Fast forward to 2019, and we’re in the midst of the same battle. With Nevada and Illinois having recently ratified the Equal Rights Amendment and Virginia coming close, the ERA is back on the table, even if there are procedural hurdles. The issue got Congressional attention last month, when Kathleen Sullivan testified before a committee about the proposed amendment. Like the debates of the 1970s, abortion became an issue. When confronted with a Republican legislator who predicted that the ERA would lead to the elimination of abortion restrictions, Sullivan assured the legislator that it would not because the amendment has nothing to do with abortion rights.

For those of us who continue to advocate for an abortion rights jurisprudence based on equality principles, this was disappointing. As decades of theorists and jurists have argued, and as the lawsuit in Pennsylvania is claiming under the state ERA, a commitment to sex equality is inconsistent with restricting a medical procedure that only women obtain. Refusing to make this bold claim based in equality shows that, while the movement has advanced beyond some of the blind spots Professor Bridges identified in her chapter, it has not moved past all of them.

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