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Reflections on a Decade of Reproductive Freedom

Louise Melling,
Deputy Legal Director and Director of Ruth Bader Ginsburg Center for Liberty,
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January 21, 2010

This week, we mark the 37th anniversary of Roe v. Wade, the landmark Supreme Court decision that significantly expanded the ability of women across the country to decide whether and when to become a parent. We also stand at the beginning of a new decade and at a moment that calls for reflection.

That said, it is hard to characterize the last decade for reproductive freedom. As I look back on the past 10 years, I see some real progress and glimmers of hope, but I also see disheartening setbacks and tragic losses.

Below is a brief account of some of the significant moments in reproductive freedom in the decade.

> Reproductive Rights and Federal Policy: 2010
> Reproductive Rights in the Courts: 2010

Progress and Hope

1. President Obama lifts the “Global Gag Rule” and the long-standing ban on abortion coverage for low-income women in the District of Columbia.
In one of his first days in office, President Obama rescinded the “Global Gag Rule,” a federal policy that cut off crucial federal funding for family planning services overseas to any foreign nongovernmental organization that used its own money to advocate for safe and legal abortion care, to perform legal abortions in their own countries, or to counsel and refer women for abortions. Without this prohibition, the U.S. can restore its place as a global leader in support of women’s health and lives.

In 2009, Congress passed and President Obama signed into law a provision that lifted the long-standing ban that prohibited the District of Columbia from using its own tax dollars to cover abortions for low-income women who live in the district. This is an important first step toward ensuring access for all women. Other federal bans on abortion coverage remain and need to be lifted, including severe restrictions on coverage for low-income women on Medicaid, Native Americans, federal employees and their dependents, Peace Corps volunteers, federal prisoners, military personnel and their dependents, and disabled women who rely on Medicare.

2. Federal funding of ineffective abstinence-only-until-marriage programming ends.
After years of advocacy by the reproductive rights community, in 2009, the federal government defunded abstinence-only-until-marriage programming. Starting in 1996, our federal government poured more than $1.3 billion into abstinence-only programs that censor vital health care information, provide inaccurate information, promote gender stereotypes, discriminate against lesbian and gay students, and in some cases impermissibly use taxpayer dollars to advance one religious perspective. Research increasingly shows that these programs are ineffective and that young people need quality sexuality education to help them make healthy decisions.

The federal budget for the 2010 fiscal year not only defunds abstinence-only programming but directs significant resources into medically accurate, evidence-based teen pregnancy prevention programs. These changes represent a significant change in the nation’s sexuality education policy, signaling a new commitment to improving young people’s lives.

3. Voters defeat anti-choice measures at the ballot box.
Voters in South Dakota, Colorado, and California stopped ballot initiatives that would have seriously threatened the ability of women and families to make private health care decisions. Notably, South Dakotans defeated a ban on nearly all abortions in that state not once, but twice; Californians stopped measures three times that would have severely restricted teenagers’ access to abortion care; and 73 percent of Coloradans said “no” to an amendment that would have not only prohibited abortions, but could have blocked stem cell research and curtailed access to in vitro fertilization and certain forms of contraception, among other reproductive health services. While these were important, and in some cases decisive victories for reproductive freedom, they have not deterred anti-choice advocates from working to get similar measures on upcoming ballots throughout the country.

4. The Food and Drug Administration approves the early abortion pill.
The decade began with the Food and Drug Administration (FDA) approving for use in the United States the early-abortion pill (also known as mifepristone or RU-486). The abortion pill is a safe and effective method of ending a pregnancy without surgery. Since the FDA’s action, there has been a steady increase in the number of women choosing to have a medical abortion. However, the hope that this option would allow more medical professionals to become abortion providers and thereby give more women access to care has not materialized. The stigma and violence associated with providing abortion care, as well as the hyper-regulatory demands placed on abortion providers, have deterred more doctors from offering this service to their patients. In the coming decade, there is more work to be done to address these concerns.

5. Emergency contraception becomes available without a prescription.
In August 2006, the Food and Drug Administration authorized pharmacies to sell emergency contraception (EC) (also known as Plan B or the “morning-after pill”) without a prescription, but only to women 18 and older with government-issued proof of age. While these restrictions were arbitrary and unnecessarily limited access to this important contraception, the decision was nevertheless hard won by advocates: It followed a May 2004 decision that denied over-the-counter status to EC despite the near-unanimous recommendation of a panel of FDA advisors to allow the drug to be sold without a prescription.

More gains followed In March of 2009, a federal court ordered the FDA to reduce the age restriction to women 17 and older. In addition, the court called on the FDA to consider lifting the age restriction. As of this writing, we await further FDA action.

6. Historic demonstration for women’s lives takes place in Washington, DC.
On March 25, 2004, bus loads of people from all over the country attended the March for Women’s Lives on the National Mall in Washington, D.C. The crowd, which some estimates put at more than 1 million strong, called for an end to government attacks on women’s health and lives and an increase in policies that ensure access to the full range of reproductive health services, including contraception, prenatal care, abortions, treatment for sexually transmitted diseases, sexuality education, and other essential reproductive health services.

Setbacks and Losses

7. Dr. George Tiller, a trusted and compassionate abortion provider, is murdered in Kansas.
After what appeared to be a period of decreased violence against abortion providers and clinic staff, on May 31, 2009, Dr. George Tiller was gunned down in the vestibule of his church. Dr. Tiller was a true beacon of liberty. For decades, he provided compassionate care for women who came from all over the country to seek abortions at his clinic when they had few, if any other, options. Throughout his abortion practice, he faced relentless threats and harassment at his home, his place of worship, and at his clinic, including surviving a shooting in 1993. We continue to mourn Dr. Tiller’s loss and honor his years of service.

8. Congress puts politics above women’s health care needs in health care reform.
As the decade ended, we watched Congress take on the important task of addressing an urgent need within the country for improved access to health care. Unfortunately, along with the promise of health care reform came an attack on access to abortion. Both the House of Representatives and the Senate passed health care reform measures that would severely undermine women’s access to abortion care. Women stand to lose if the abortion provisions in either bill are included in final health care reform. As of this writing, debate and negotiations over health care reform continue. Tell lawmakers that abortion is part of basic health care for women and should be covered under health care reform.

9. The U.S. Supreme Court upholds a federal abortion procedure ban.
On April 18, 2007, the U.S. Supreme Court dealt a devastating blow to women’s health and reproductive rights. In a 5-4 decision that puts politics before women’s health, the Court upheld the first-ever federal ban on abortion methods – called by its sponsors the “Partial-Birth Abortion Ban Act of 2003.” In upholding the ban, the Court undermined a core principle of Roe v. Wade – that women’s health must remain paramount.

In an impassioned dissent, Justice Ginsburg attacked the majority for placing women’s health in danger and for undermining women’s struggle for equality. She wrote, women’s “ability to realize their full potential . . . is intimately connected to ‘their ability to control their reproductive lives.’”

10. State lawmakers propose more than 5,000 anti-choice measures over the course of the last decade.
The struggle to protect reproductive freedom has long been waged in state legislatures. For years, anti-choice lawmakers have been chipping away at the right to abortion by imposing more and more restrictions on a woman’s ability to obtain care. In the last decade, state lawmakers introduced more than 5,000 anti-choice measures, including attempts to ban abortion and interfere with women’s decision-making and the ability of doctors to provide care. Since 2000, 391 of these measures became law, including an Oklahoma law that became the first-in-the-nation law that forces health care providers to perform an ultrasound before a woman has an abortion regardless of medical necessity or benefit, and requires the woman to listen to a description of the fetal image against her will. (The law is currently being challenged in court.)

Looking Ahead to the World We Want
There is still much work to be done to create a world that respects everyone’s right to form intimate relationships, to enjoy a private sexual life, and to decide whether and when to have children. These are the three cornerstones of reproductive freedom that we must continue to shore up as we look ahead toward a new decade. Progress will not be made, however, unless we can de-escalate the rhetoric that surrounds abortion, and until we can move to a common understanding that abortion, like birth control and prenatal care, is part of basic health care for women. Deciding whether and when to have children is one of the most private decisions a person can make. Our policies should reflect this fact, and ensure that every woman can make the best decision for herself and her family.

(Cross-posted to RH Reality Check and Daily Kos.)