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Access:
Abortion, emergency contraceptives, contraceptives

By Sarah Werthan Buttenwieser

December 2005

Before abortion became legal, the desired attributes advocates sought were these: safe and legal. In an article on the economics of abortion access for (Conscience, the journal of Catholics for Choice, Winter 2005-2006), Marlene Gerber Fried writes about Laura Kaplan, author and former member of the Jane Collective, a feminist underground abortion service which provided 11,000 abortions to women in Chicago between 1969 and 1973. "Kaplan notes, 'The cost of abortion was a constant problem, since few women, regardless of their economic status, could easily manage $500.' The women in Jane were constantly arguing and negotiating with their provider to get him to drop his price. After the women in the collective got rid of their 'doctor' and became providers the group dropped the price to $100, but a woman only paid what she could afford and Jane became essentially a service for poor women." Although some -- like the Jane Collective -- long ago understood it to be an issue, access was not the third attribute listed after safe and legal.

Fast forward to 2005: abortion remains legal, but with many caveats; depending where you live, abortion might be effectively illegal. Not only is access to abortion constricted in this country, other legal health care is also no longer universally accessible, including emergency contraception (the "morning after" pill) and oral contraceptives. With this smattering of examples, you will glimpse just how limited access to routine reproductive health services has become twenty-three years after Roe:

An ACLU fact sheet on abortion explains that "since 1995, bans on safe abortion procedures have been enacted in more than half the states and challenged in courts throughout the country." Thirty-one states have enacted bans on safe abortions. Although the bans have been challenged and struck down in twenty-one states, other states continue to introduce new bans.

Thirty states have mandatory delays and require that clinics share biased information with their clients. This is enforced, according the Center for Reproductive Rights, by twenty-four of those states.

In 1976, the Hyde amendment halted Medicaid's provision of funding for abortion. Only seventeen states still provide limited Medicaid funding for abortion. Again, according to the ACLU: "Federal funding restrictions have left some women on Medicaid little choice but to use money they need for food, rent, clothing, or other necessities to pay for an abortion. One study showed that nearly 60% of women on Medicaid were often forced to divert money that would otherwise be used to pay their daily and monthly expenses, such as rent, utility bills, food and clothing for themselves and their children. Many Medicaid-eligible women delay their abortions, increasing their medical risks, while they scrape funds together. Other women have been forced to carry their pregnancies to term or to seek illegal abortions.

Studies have shown that from 18 to 35 percent of Medicaid-eligible women who want abortions, but who live in states that do not provide funding for abortion, have been forced to carry their pregnancies to term." The National Network of Abortion Funds points out in its report, "A Matter of Justice," that women of color are disproportionately represented among low-income women. Because of this, they also represent a high proportion of welfare recipients, meaning that the lack of Medicaid funding has a higher impact upon women of color, especially black women, than any other group. Sharon Hays, professor and author of Flat Broke With Children researched mothers and welfare. "When abortion isn't covered by Medicaid, then women find themselves pregnant without options," she explains. "The caps on welfare are such that an unmarried woman who becomes pregnant after she's begun to receive aid cannot get assistance for that child, if she continues the pregnancy."

Beyond funding for abortions, locating abortion services is increasingly difficult. The Abortion Access Project (www.abortionaccess.org) reports that as of 2002, 87 percent of all U.S. counties and 97 percent of all rural U.S. counties have no abortion provider.

A 2002 article in the Expectant Mother Care newsletter reported that New York City was "the first city in the country to make abortion training mandatory for the 150 residents who pass annually through the eight city hospitals that offer OB-GYN programs." Exemptions were granted to those declaring religious or moral grounds. This development was especially newsworthy when the numbers of providers are considered. The number of abortion providers in the United States fell by one-third between 1982 and 1996, to roughly 2,000, according to the most recent study by the Alan Guttmacher Institute (guttmacher.org), especially because half of those doctors are slated to retire in the next 10 years. In 1996, the Accreditation Council for Graduate Medical Education began requiring OB-GYN programs to provide instruction on abortion and family planning. These initiatives have considerable impact: the National Abortion Federation reported that between 19995 and 2002, the percentage of residency programs that included routine abortion training rose from 12 percent to nearly half of all programs.

This doesn't mean that providing abortion services is a safe endeavor for doctors, though. According to the Abortion Access Project, there have been 15,087 reported instances of violence and/or harassment against abortion providers since 1977, including 7 murders and 17 attempted murders (actual instances are most likely much higher the report suggests). In 2000, more than half of all providers experienced harassment from anti-abortion forces.

Access has been severely limited by court rulings. Judge Alito's nomination to the Supreme Court has reproductive rights advocates worried because he dissented in the Planned Parenthood v. Casey case, which was about spousal consent to abortion. Although spousal consent was overturned, laws in effect that mandate the involvement of at least one parent in the abortion decision exist in thirty-four states.

In those states with parental notification or consent laws, teenagers unable to tell their parents must either travel out of state or obtain approval from a judge -- known as a "judicial bypass" procedure -- to obtain an abortion. A report from the Planned Parenthood Federation of America (plannedparenthood.org) cites research indicating that "sixty-one percent of the respondents reported that at least one of their parents knew about their abortion. Of those minors who did not inform their parents of their abortions, 30 percent had histories of violence in their families, feared the occurrence of violence, or were afraid of being forced to leave their homes. Minors who did not tell their parents were also disproportionately older (aged 16 or 17) and employed." As abortion advocates and health care providers working with teens have said for decades, most teens do tell a parent or other, significant and trustworthy adult. Younger teens especially entrust this information to their parents, unless they cannot.

One development thought to potentially decrease the abortion rate in this country was introduction of Emergency Contraceptives (EC, basically a very high dose of an oral contraceptive). Five states have passed laws requiring medical providers to offer Emergency Contraceptives to rape victims treated in emergency care facilities. Yet, according to a recent study by the ACLU, "fewer than 40 percent of emergency care facilities in eight of eleven states surveyed provide EC on-site to rape victims." If taken within 72 hours of unprotected intercourse or contraceptive failure, EC reduces the risk of pregnancy by as much as 89 percent. Pennsylvania lawmakers introducing a bill that requires hospitals to offer EC to women after a rape noted that of the 300,000 women raped each year in the United States, it is estimated that more than 25,000 women become pregnant as a result of rape.

Hospitals and Emergency Care Centers are not the only ones impeding access to EC. Since 1997, Wal-Mart has refused to sell EC. The company calls this a business decision, without regard to the fact that for many women, Wal-Mart is the only pharmacy within miles. A report by the Alan Guttmacher Institute explains this policy has an especially broad reach for women living in rural areas. "A 2003 projection estimated that Wal-Mart would control 25% of the drug store industry by 2007."

General access to contraceptives is also limited for many women. The Center for Reproductive Rights explains the disparity that purchasing contraception creates between women and men: "Women of reproductive age spend 68% more than men on out-of-pocket health care costs, largely on reproductive health care services. Two-thirds of U.S. women of childbearing age rely on private, employer-related plans for their health coverage, yet 49% of large group plans do not routinely cover any contraceptive method." When the United States government allowed comprehensive coverage for contraceptives, that out-of-pocket gap was narrowed. But Medicaid doesn't cover contraception costs, nor are caseworkers even permitted to discuss family planning. Sharon Hays remarks, "By law, caseworkers aren't allowed to utter the phrase 'birth control.' Further, they are pressured to push abstinence. The mixed messages for poor women are hopelessly confusing: the government is pro-abstinence, pro-marriage, against contraceptives. Welfare imposes family caps and yet provides no coverage for abortion."

The Center for Reproductive Rights quotes an article in the Economist from April of this year: "A rising number of pharmacists are refusing to dispense prescriptions for birth control and morning-after pills, saying it is against their beliefs." Currently, four states-Arkansas, Georgia, Mississippi and South Dakota-have laws or policies on the books that explicitly allow pharmacists to refuse to dispense contraceptives. Similar legislation was introduced in nine other states this year, although none became law.

Teens might face roadblocks other than pharmacists' refusals or cost when seeking contraceptives. Only twenty-one states and the District of Columbia grant all minors the authority to consent to contraceptive services. Approximately eleven other states grant most minors this authority.

So how did we get here? Where might all of these various roadblocks to reproductive freedom lead us? Marlene Gerber Fried directs the Civil Liberties and Public Policy Program at Hampshire College. An author and editor (Fried was most recently the co-author of Undivided Rights: Women of Color Organize for Reproductive Justice, South End Press, 2004), Fried also co-founded both the Abortion Rights Fund of Western Massachusetts and the National Network of Abortion Funds. As a longtime advocate for reproductive justice, her perspective on dwindling services is: "After Clinton was elected, there was this brief period when the legal rights seemed safe: not true during the Reagan era. So, advocacy groups formed to work on access, because it was clear during Reagan access had been compromised."

"Most groups approached access in terms of providers, and not necessarily in terms of low-income women," she says, and the number of groups focused upon access has increased. "Since 1993, a great deal of organizing has taken place, including NNAF." Originally a coalition of 24 community-based funds helping low-income women pay for abortion services, NNAF is now a consortium of 102 grassroots organizations that advocates on abortion access issues nationally, as well as providing direct assistance for those in need. Fried also cites efforts like those of the Abortion Access Project (abortionaccess.org) and the National Abortion Foundation (naf.org) to train mid-level providers such as nurse midwives and Physician Assistants to perform abortions. Fried says, "In the late 1990s, when medical abortion was just being introduced into the United States, advocates saw the possibility of normalizing abortion by integrating it into routine health care. However, FDA regulations on Mifipristone as well as state and federal restrictions on abortion which apply to both medical and surgical procedures, created significant barriers. Despite the obstacles, some primary care providers are offering medical abortion in places where previously there were no abortion services."

The advent of medical abortion (RU486) affected access because it was much easier to provide, even in a family practice doctor's office. "While medical abortion blurred the line between a procedure and more routine health care, normalizing early abortion at the same time, the restrictions are the same as for those providing surgical abortions. Thus, few doctors outside the abortion clinic setting are willing to prescribe the medication."

While obtaining services -- medical or surgical abortion -- may be difficult for women with financial resources, for women on welfare the task is nearly impossible. Sharon Hays underscores this point: "The problems, the absolute Catch-22 poor women face, are so evident to welfare caseworkers. While the Federal Government pushes women to get connected to men -- to marry them -- women on welfare have trouble gaining access to birth control, and should they find themselves pregnant, no resources are available. It's hard for middle-class people to conceptualize the multiple difficulties poor women face. Say, for example a woman with two children is working as hard as she possibly can to get things together in terms of work, raising the kids, getting some education or vocational training and then she becomes pregnant unexpectedly. She has no options. I've seen caseworkers hand state monies under the table to women to help them pay for abortions, because they know how dire the situation really is for these women, women doing all they can to survive."

Linda Wharton was lead co-counsel in the Casey case. While overturning Roe is the scenario flooding the news each time a potential Supreme Court nominee is named, Wharton warns other scenarios are more likely and probably equally worrisome. She says, "A more likely scenario [than overturning Roe] could occur, in which the Court would eviscerate Roe by interpreting the Casey undue burden standard in ways that allow multiple, harmful restrictions on access to abortion."

The role Judge Alito played as a dissenter in the Casey decision is, according to Wharton, real cause for concern. "Alito," Wharton continues, "would have upheld the husband notification provision. He purported to apply the undue burden standard; however, he was willing to overlook the severe obstacles to abortion access posed by this provision to victims of spousal assault and rape. Instead, in his dissent, he highlighted all the women to whom the husband notification provision did not pose a problem. He also assumed that victims of spousal assault would evade the requirement by falsely reporting that they had told their husbands. Lastly, he deferred to the judgment of the state legislature that it had provided adequate exemptions in the statute. This approach suggests that he will rarely, if ever, be willing to find that restrictions on access, short of outright bans, unduly burden women. What we may be left with is protection for outright bans, but no protection whatsoever for restrictions on access that, in practice, make abortion effectively unavailable or extremely difficult for certain women. Although the trial record showed that husband notification posed a lethal threat to some women, Alito found no undue burden."

The radical right has used Roe to galvanize its forces, as attention over Supreme Court nominees and their potential views about abortion reveals. In doing so, the right has attached increasing stigma to abortion itself. Policies that make abortion inaccessible -- due to funding, difficulty in finding a clinic or getting to one, fear of on-site violence, or laws that enforce waiting periods or parental consent or notification -- increase fear and shame for women. "Fear," says Barbara DiTutullio of the Women's Law Project (womenslawproject.org), "is a big factor."

For a woman seeking an abortion, slowing her ability to obtain the procedure -- due to physical distance from clinic care, economic factors or the time it takes to seek judicial bypass or travel out-of-state for care -- the consequences are real. Delays increase the monetary cost of the abortion and often add to the physical and emotional health risk, since early abortions are less involved procedures. Up to seven weeks, medical abortions are available; up to twelve, the care can be completed in one office visit, rather than an additional day for pre-operative care.

DiTutillio worries about doctors and hospitals refusing care. "This 'conscience clause' turns health care delivery into a choice. It's dangerous to have health care delivery be optional. When you add in the bans on various services-from emergency contraception in certain places to partial birth abortions -- along with all the regulations that limit access -- you have so many limitations upon care, it's no longer clear whether a woman can actually secure services."

Marlene Fried is even more emphatic about providers' citing "conscience clauses." Fried says, "Being a pharmacist or a physician isn't a right. A right in this country is access to health care."

Dayle Steinberg, CEO of Planned Parenthood of Southeastern Pennsylvania believes that access will be won or lost state-by-state. "We have to push our state reps and state senators on issues of access," she urges.

The New York Daily Record (November 20, 2005) reported on just such an initiative. Because Pennsylvania hospitals are not required to offer Emergency Contraception, two Pennsylvania senators and one state representative have introduced bills that would mandate hospitals to provide information about the pills and give them to rape and sexual assault victims who want them. The legislation as it is written has no opt-out for individual doctors or religious-affiliated facilities Currently, some hospitals offer the medication, while others have policies that allow health-care providers to opt out of providing the medication because of personal religious or moral reasons.

As Steinberg points out, the country largely -- sixty-five percent, that is -- supports a woman's right to have an abortion. "Roe might signify to people that abortion remains legal. That's why we have to get people more concerned about what's happening locally, because it's in so many individual states that the rights are being taken away."

Sharon Hays believes that advocates should be looking at another generation entirely. "Children pay the largest price for welfare and Medicaid policies that make raising children as a single mother incredibly arduous. Children's suffering becomes invisible," says Hays. "A child born poor is doubly disadvantaged in these times." Looking back before so many of these cuts and regulations went into effect, Hays believes the solution for poor women lies in returning welfare services to the place they were thirty years ago. "We'd be in good shape," Hays asserts, "if we provided more aid, fewer untenable restrictions and caps, and again offered all health care -- including reproductive health care services -- to women on welfare." She believes that education about the situation is critical as a first step. "People need to understand the issues involved, how deeply problematic the situations are that poor women and children face in this country. It's as if poverty has gone underground. The only way to change the situation is to make it visible again."

If the obstacles poor women face have invisibility attached, what will make issues of access visible? Dayle Steinberg muses, "When women who have enjoyed access all along, even as it's been lost for many women, lose access, they will be angry. The majority believes that women have an absolute right to health care. And anger is what changes things."

mmo : december 2005

Sarah Werthan Buttenwieser is a freelance journalist and regular contributor to the MMO. She lives in Western Massachusetts.

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