Could Stupak-Pitts have a silver lining?

by on December 7, 2009  •  In Congress, Health, Reproductive rights

For years I never worried much about an outright reversal of Roe v. Wade, because I thought that the political instincts of conservative Justices would cause them to blink before they took that ultimate step, even if they had the five votes to do it.  If the right to choose were ever actually taken away from American women, the mostly dormant, somewhat ambivalent pro-choice majority would rise like a phoenix and exact revenge.  Goodbye to suburban mom Republican votes. And, although bad decisions have chipped away at it, Roe is still good law, at least formally.

More recently, I'm less certain about this underlying political calculation. If each state could decide whether to allow or prohibit abortion, many would opt for pro-choice laws much as they have today, and many women living in states where abortion was illegal would be able to travel to a location where they could obtain the procedure. 

Of course, it is also true that many would not be able to afford the time, the travel and the procedure. But those are only the poor women. My fear, to be blunt, is that if middle-class women basically retained the option to have an abortion, either formally through their state's law or informally through their own economic capacity, there would be no political price to pay for retracting the federal constitutional right entirely. And sooner or later, conservatives would figure that out.

Now Priscilla Smith, a savvy analyst of reproductive rights issues, has posted an intriguing essay at Balkinization in which she argues that the Stupak-Pitts amendment to the health reform bill might reverse this trend toward fragmentation along economic lines by putting the majority of women in the same sinking boat. Following are excerpts:

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt — when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. …

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:

• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension …, in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so…

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim…


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