Author's Note: I have linked several legal and social science annotations I co-authored with another intern during my summer at the Center on Reproductive Rights and Justice at UC Berkeley's School of Law. This particular wing of the Reproductive Justice Virtual Library is part of CRRJ's strategic initiative to repeal Harris v. McRae. The annotations are summaries of legal and social science articles intended to be accessible for a general audience.
From CRRJ's Reproductive Justice Virtual Library's wing on abortion funding bans:
Fully funding abortion is essential to making the abortion right a meaningful reality for people living in poverty. One Supreme Court case standing in the way is Harris v. McRae, which upheld as constitutionally valid the Hyde Amendment's ban on use of federal Medicaid funds for nearly all abortions. Getting the Supreme Court to revisit and reverse its ruling in Harris v. McRae is the goal of one of CRRJ's and If/When/How's long-term strategic initiatives. Correcting the case law is an essential element of a multi-faceted strategy to restore and secure coverage of abortion in public insurance programs, which also includes research, movement building, and state and federal policy advocacy. Replacing this dangerous Supreme Court precedent with a case that declares abortion funding bans unconstitutional would secure abortion coverage in public insurance for the long haul, regardless of future shifts in the political balance of Congress and possible efforts to resurrect Hyde.
Keighley, Jennifer. “Health Care Reform and Reproductive Rights: Sex Equality Arguments for Abortion Coverage in a National Plan.” Harvard Journal of Law & Gender 33 (2010): 357–402.
This article argues abortion is a sex equality issue and concludes that restrictive abortion funding constitutes sex discrimination, which should be examined under a transformed understanding of the Equal Protection Clause in the U.S. Constitution. Keighley argues that the sex equality argument has strategic appeal because it focuses the legal issues on equality rather than current legal thinking on these topics. The author examines how legislative discussion around the Pregnancy Discrimination Act of 1978 showed a more expansive understanding of sex equality and healthcare, which ought to be adopted in abortion funding analysis today. The article contends that in order to ensure gender justice and to prevent sex-based discrimination, abortion funding must be included in healthcare coverage. The article also argues that the Court’s focus on poverty, instead of sex equality, in the Supreme Court’s case Harris v. McRae demonstrates a reluctance to confront sex equality issues within the abortion funding context. The author suggests, however, that the Supreme Court might one day change its approach to reproductive rights by viewing abortion through a sex equality lens.
Roberts, Sarah C.M., Heather Gould, Katrina Kimport, Tracy A. Weitz, and Diana Greene Foster. “Out-of-Pocket Costs and Insurance Coverage for Abortion in the United States.” Women’s Health Issues Journal 24, no. 2 (2014): 211–18. http://www.ansirh.org/sites/default/files/publications/files/roberts-mar14-out_of_pocket.pdf.
This article analyzes how pregnant people pay for abortion care in the U.S., including through private and public insurance, non-profit abortion funds, and out-of-pocket. The data show that regardless of insurance status, most people must pay out-of-pocket for abortion care. On average, participants in the study paid an average of $370 in out-of-pocket costs for an abortion, whereas participants whose public or private insurance did not cover abortion paid an average of $575.The article also details the development of abortion funds, which provide subsidies (both partial or full) to healthcare facilities to cover costs of a low-income person's abortion. The authors explain that even in states where Medicaid coverage for abortion is extended beyond the narrow exceptions listed in the Hyde Amendment, it is still difficult for a person to access insurance coverage and rare for any insurance to cover the all of of the related costs. Despite the Affordable Care Act (“ACA”), which is meant to increase access to public and private healthcare, this article points out how new federal and state laws restrict the use of private and public insurance coverage for abortions. The article warns that, when it comes to abortion, limitations of the ACA may counter potential gains, and some people will even lose the abortion insurance coverage they previously had.
Binion, Gayle. “Reproductive Freedom and the Constitution: The Limits on Choice.” Berkeley Journal of Gender, Law & Justice 4, no. 1 (1988): 12–41.
This article insists that because abortion was declared a fundamental right in Roe v. Wade, state restrictions on abortion funding should be subject to the highest level of legal review (commonly referred to as strict scrutiny). Binion argues that although the government defended its decision to financially support childbirth but not abortion in order to “protect potential life,” the Court should have required a stronger justification. The government’s choice to provide Medicaid coverage for childbirth but not for abortion constitutes an abridgement of a fundamental right, because without coverage, millions of low-income pregnant people cannot obtain the abortion care they need.
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