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Abortion: Arkansas Law Hopes to Protect Father’s Rights

A new Arkansas law that will go into effect later this year will allow a husband to sue a doctor in order to stop his wife from getting an abortion. Known as the Arkansas Unborn Child Protection from Dismemberment Abortion Act, or “Act 45”, it prohibits a particular type of abortion known as “dismemberment abortion.” The law provides no exemption for spousal rape.

Historically, Father’s Rights were to Prevent Abortions

abortionFathers historically have no legal rights with regard to their wife or the mother of their child choosing to have an abortion. If a man’s pregnant partner chooses to have an abortion, the father’s consent is not a legal requirement. A woman can choose to abort the pregnancy despite the father’s objections. In fact, the Supreme Court in Planned Parenthood v. Danforth ruled that laws requiring a spouse’s consent to be unconstitutional. The court reasoned that only one partner’s decision on abortion can prevail, and that the balance weighed in the woman’s favor.

Moreover, the Supreme Court concluded in Planned Parenthood v. Casey that the father does not have a legal right to be notified of an abortion. Most women discuss an abortion with their significant other, but those who do not may be in an abusive relationship. Therefore, requiring spousal notification places an undue burden on women who may fear for their safety.

What Kind of Abortion Does the Arkansas Law Stop?

Arkansas Act 45 prohibits a practice known as dilation and evacuation, also known as dismemberment abortion, in which fetal materials are removed from the womb through surgical instruments. It is the safest and most common method of abortion in the second trimester and is used in 95 percent of second-trimester abortions. It occurs after 12 to 14 weeks of pregnancy.

How Will the Arkansas Law Work?

Under the new Arkansas law, a father can sue a doctor to stop an abortion if the wife is in her second trimester and having a dilation and evacuation procedure. This means that the wife is over 12 weeks pregnant. What is controversial about the law is that it allows the father to stop an abortion even if he raped his wife.

Is the Arkansas Law Constitutional?

The American Civil Liberties Union (“ACLU”) of Arkansas argues that it is not. They intend to challenge the new state law as soon as practically possible.

The ACLU argues that the law not only bans what’s considered the safest and most common method of second trimester abortions, but it also does not make any exception for victims of spousal rape. This means that a wife’s rapist husband could sue to prevent an abortion.

Under Roe v. Wade, the Supreme Court established that it is a woman’s right to have an abortion until approximately 22 weeks of pregnancy or when the fetus is considered viable outside the womb. The new law puts a limitation on the woman’s ability to abort before viability, even though it is a guaranteed right. For this reason, it should not be considered constitutional.

Additional Concerns about the Law

While the Arkansas law affords the father more rights, it also strips away rights that have historically been given to the woman. The ACLU is concerned that with the limitation on dilation and extraction abortions, women may opt to use a procedure that is less safe. Such a procedure can put both the unborn fetus and the woman’s life at risk.

End of Obamacare: What Happens When Trump Repeals the ACA?

The GOP has hated what they’ve coined “Obamacare” from the start. Obamacare, also known as the “Affordable Care Act,” certainly has its kinks. For instance, high deductibles for its Bronze plan users make up about 20 percent of its customers. Nevertheless, the fact of the matter is that it has helped millions of people, most of whom are low-income or working class, who otherwise would not have health insurance. It has done this without raising taxes.

President Trump promised to repeal Obamacare as soon as he was elected. When he finally took office, he again promised to repeal Obamacare. Initially, indications from the GOP were that a repeal would occur within the first 100 days of Trump’s presidency. The repeal seems to have lost its initial steam.Obamacare

Possible Timeline

The Senate and House of Representatives started the repeal process in earnest. In January, both the House and the Senate passed a budget resolution that set the stage for introducing a bill that would strip major provisions from Obamacare.

In order to repeal Obamacare, the next step is for President Trump to the sign the budget resolution bill while simultaneously introducing a bill to replace key provisions of the Affordable Care Act, but the GOP seems to have faltered at this step. What they initially wanted to happen swiftly is now being pushed back to the end of 2017, primarily because the party is still trying to figure out what to replace Obamacare with.

Even when a replacement for Obamacare is presented and signed by President Trump, there will be delays built into the repeal bill in order to ease the transition. No one knows how long the delay will take, but it’s presumed a delay of two to four years is likely. For this reason, major changes are unlikely to affect Affordable Care Act consumers right away.

Why Delay Repeal?

For one, there are many parts of Obamacare that are popular. Under Obamacare, insurance companies cannot deny coverage based on a preexisting condition, and children stay on their parents’ plan until they turn 26. These provisions are popular among the majority of Americans.

Moreover, the Affordable Care Act has insured over 20 million people who otherwise wouldn’t have health insurance. Republicans have been bombarded with constituent concerns about the potential loss of coverage. There are stories of everyday Americans who say they would’ve died had it not been for the Affordable Care Act.

How Will Repealing Obamacare Affect Americans?

Under Obamacare, millions of Americans are insured and can’t be turned away despite pre-existing conditions. Senior citizens pay less for Medicare coverage and for their prescription drugs. Many Americans receive free contraceptives, mammograms, colonoscopies and cholesterol tests, Repealing Obamacare could threaten all these advantages.

For instance, “repairing” Obamacare could mean higher premiums and deductibles for those enrolled on Medicare, most of whom are on fixed incomes. Companies with at least 50 employees may no longer be required to provide affordable insurance to their employees who work more than 30 hours a week. This could affect millions of employees who work at least 30 hours per week but less than 40 hours. In addition, companies will no longer have to keep children on their parents’ health insurance plans until they turn 26.

Finally and perhaps most devastating, a repeal on Obamacare would no longer require nearly all Americans to obtain insurance or pay a penalty. Millions of Americans covered by the Affordable Care Act may be dropped by their insurance carrier with no way of obtaining alternative insurance.

Aetna Health Insurance Lied About the ACA and Triggers Anti-Trust Claim

The Affordable Care Act (ACA), also known as Obamacare, has been an extremely contentious bit of legislation.  The future of the act is currently extremely uncertain, President Trump signed an executive order his first day in office which–while vague enough to be nearly symbolic in nature–still serve to limit the law to some extent.  However, the law has also been at the heart of a recent court decision which put a stop to a $37B dollar merger between two health insurance behemoths.

Aetna ACA

The decision comes as part of the ongoing anti-trust case over the merger between Aetna and Humana–two of the five biggest health insurance companies in the nation.  The announcement of the merger agreement of these two companies in 2015 led to an immediate investigation, and ultimately led to the Department of Justice, eight different states, and the District of Columbia all filing lawsuits saying the merger was anti-competitive.

Aetna obviously disagreed and between the government and them they managed to produce millions of pages of arguments and evidence for each side as to the exact economic impact of the merger.  Aetna’s dedication to the issue is no surprise, beyond the desire to see the merger go through they had some serious skin in the game–a $1B dollar fee to be paid to Humana if the merger fell through.

What Did Aetna Claim about the Affordable Care Act (a.k.a. Obamacare)?

One of the most contentious arguments revolved around the ACA itself.  The Affordable Care Act created a public forum through which the public could purchase insurance plans, although it did allow insurance companies to offer alternative plans outside of this public market.  It also requires insurers interested in providing plans through this market to comply with certain obligations.  Just before the lawsuit began, Aetna withdrew from all but four of the states it offered insurance policies through the ACA.

Aetna said that they withdrew because the plans they offered under the ACA were not making them money.  The government argued that they did it as part of strong arm tactic.  They said that Aetna, knowing the impact it would on public perception of the ACA, threatened to leave the program if the merger wasn’t approved

There was a fair bit of evidence that many of the ACA programs were, in fact, making Aetna quite a bit of money.  However, the government struggled to produce evidence showing Aetna’s actual motivations in leaving the ACA programs.  That is, they were having trouble, until they produced an email from Aetna’s Chief Executive to the Department of Justice itself specifically stating that their participation in the ACA hinged on them being allowed to merge with Humana.  From there, they went on to produce conversations with Aetna officers where they heavily suggested, and one time outright stated, that if they weren’t happy with the merger results the government wouldn’t be happy with their involvement in the ACA.  They even found emails where, after a series of emails explaining that the withdrawal was to strengthen their position in their upcoming anti-trust lawsuit, Aetna executives actively mentioned they were trying to avoid leaving a paper trail indicating the reason they withdrew from the ACA and making efforts to shield any such evidence from being produced in a lawsuit.

A few weeks ago, in a 156 page monster of a ruling, the court finally agreed with the government and part of that ruling was based on the fact that Aetna had misled the public–and attempted to mislead the court–as to the motivations behind leaving the ACA program.  So in order to understand how, let’s first discuss exactly how anti-trust law works before looking at how Aetna’s deception as to the ACA effected their case.

How Do Anti-Trust Lawsuits Work?

Anti-trust law is basically the government trying to keep companies from becoming such an enormous market presence that they prevent other businesses from competing with them.  If you’ve ever played Monopoly you get the idea.

The government pays particular attention to health insurance companies in anti-trust cases because of how Medicare operates and specifically how the government pays insurance companies to provide insurance supplements to cover gaps for seniors on Medicare.  Where health insurance companies have huge enough market presence, it leaves seniors paying fees that make these gap-filler plans inaccessible.

In order to establish that a merger would violate anti-trust law, the government has to show that such a merger would “substantially lessen competition, or tend to create a monopoly.”  They don’t need to show that it will absolutely happen, but just that there is a probability that a merger would be anti-competitive.  Establishing this, as you could probably tell from the millions of pages of evidence and a 156-page ruling, is generally an incredibly complicated and in-depth process.  Where the government can show such a probability, there is a presumption that a merger is illegal.  However, a defendant in an anti-trust case, such as Aetna, can produce evidence to rebut such a presumption.

There was obviously an enormous amount of evidence here as to the economic impact of the merger, evidence supporting both sides.  However, the question ultimately came down to how much of the market Aetna would end up controlling–and that’s where their game-playing around their motivations behind leaving the ACA came into play.

The Repercussions of Aetna’s Lie

Aetna’s whoppers about the ACA weren’t the only or the deciding factor in the court’s ruling.  However, they were influential enough to one of the few elements they specifically mentioned in the summary of their ruling out of the over a hundred pages of evidence that ruling discusses.

So what did Aetna’s dishonesty actually mean for their case?  The government argued that because Aetna misled the public, the court had to ignore the fact that Aetna had in fact left the markets for those states and only consider Aetna’s market presence as it was before they withdrew.  The court didn’t buy this, however they still took Aetna’s deception into account.  They looked to the future to consider whether Aetna may expand into those markets in the future.  Given that Aetna was making money in those and only withdrew as part of a strong arm tactic, they felt it very likely they’d return to the markets they left after the merger completed.  They felt this true in Florida, where the ACA markets were actually found to be the only profitable part of Aetna’s business–a situation which led to confused emails from Aetna officials out of Florida–these emails received a hasty response to only discuss the matter over the phone.

With all this in mind, the court felt it was likely that Aetna would simply return to the markets it had abandoned post-merger.  As discussed above, likely is all a court needs in an anti-trust case.  Thus, in a very real way, Aetna’s approach to the ACA had a huge hand in killing their chances of a successful merger.

What Does This Mean on a Broader Level?

First and foremost, the most obvious lesson here is that judges don’t particular care for hiding evidence.  So much so that it took what could have been a fairly small issue and turned into an entire section of the court’s ruling.  However, the reality of the situation also impacts some of the arguments surrounding the ACA.

Just weeks ago, Aetna’s withdrawal was used as evidence to support the end of the act.  However, when the reality is a more profitable one than Aetna led the country to believe, it certainly muddies the water on the issue.  We’re almost certainly going to see a lot of changes to the ACA in coming months and years.  However, it’s important that we look at the facts as they are when discussing the issue–and not spin on the topic such as Aetna’s misrepresentations.

H.R. 7: the First Step to End Access to Abortion

Days after worldwide Women’s Marches, the House of Representatives voted to pass bill H.R. 7. The Bill, also known as the “No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act,” is meant to curb abortion rights by banning the use of federal funding for abortion services except in extreme cases. The bill is an extension of the controversial Hyde Amendment.

H.R. 7 Abortion The Hyde Amendment

Passed by the House of Representatives in 1976, the Hyde Amendment is a legislative provision that blocks federal Medicaid funding for abortion services. Three very narrow exceptions exist: if the pregnancy is a result from rape, incest, or if continuing the pregnancy will endanger the woman’s life. Medicaid is a federally funded health care program for families or people with limited resources. It provides free or low-cost health care to low income people.

The Hyde Amendment has had the biggest effect on those who rely on Medicaid for health services, namely low-income women, women of color, young people and immigrants. Unless the pregnancy threatens the life of the woman or the pregnancy is a result of rape or incest, insurance does not cover abortions for those women on Medicaid. As a result, those women and families who are already low-income have to carry their babies to term and pay for the insurance costs out-of-pocket. Recent reports indicate the uninsured cost of having a baby is anywhere from $30,000 for an uncomplicated vaginal birth to $50,000 for a C-section.

How H.R. 7 Expands the Hyde Amendment

The Senate still needs to vote to pass H.R. 7 for it to become law, but if it passes, the Hyde Amendment extends to those people who receive their medical insurance plans by participating in the Affordable Care Act. Organizations like Planned Parenthood will no longer receive federal funding, even if the money is used for other health care services. The bill further makes the Hyde Amendment permanent. For the last 40 years since it was first proposed in 1976, the amendment has been subject to annual renewal. The Bill eliminates the need to approve the amendment year after year. The bill also provides incentives for private insurance companies to drop their abortion coverage.

Arguments For and Against the Bill

Proponents of the bill argue that taxpayers’ money shouldn’t be used for abortions, especially if the individual taxpayer is pro-life. In this way, they contend that there should be a boundary between public and private dollars for such a controversial procedure. Opponents claim the Amendment and H.R. 7 places an undue burden on women who rely on Medicaid and government assistance for health care.

What Does This Mean for Women?

If passed by the Senate, H.R. 7 will not have a sweeping impact on all women. It will, however, impact women on Medicaid and who have health insurance through the Affordable Care Act. Women of color will be most impacted as they disproportionately comprise the majority of Medicaid enrollees. Recent statistics show that 30% of Black women and 24% of Hispanic women are enrolled in Medicaid. Comparatively, only 14% of white women are enrolled in Medicaid.

There are currently 25 states that already prohibit insurance providers from covering abortions. If H.R. 7 becomes law, it will pull federal funding for abortions in the remaining 25 states.

From a practical standpoint, the bill may force women who simply can’t afford to have an abortion to carry their pregnancy to term. These women could be consumed by unsurmountable debt from their medical care during pregnancy and the birth of their child. They likely will have to seek federal assistance (welfare) to support themselves and their child.

Women who are desperate to avoid paying prohibitively expensive insurance costs may seek more dangerous methods to abort their child.  Such practices could threaten the life of the mother as well as the unborn child.

Trump’s Global Gag Order and Reproductive Rights

The last week has been characterized by surprising executive orders coming out of the freshly minted President Trump’s Oval Office left and right.  One of these orders is, perhaps, a little less surprising than the others–the global gag rule.

Trump’s spin on the global gag rule came, ironically, the day after the anniversary of Roe v. Wade–arguably the most influential case ensuring reproductive rights in the 20th century.  It also was only two days after the women’s march–with 673 different marches taking place in support of women’s rights around the globe.

The order enacts a policy which forbids providing U.S. aid money to any foreign organization which offers any abortion-related services–from actual abortions to things as small as providing pamphlets about abortion, information of any sort about getting an abortion, or medical referrals to locations that can provide safe abortions.  The order even applies in countries where abortions are completely legal.  So why isn’t such a huge order–chilling reproductive rights across the globe–a surprise?  Because, at its core, it’s nothing new.

The original global gag rule–also known as the Mexico City Policy–was put into force by Ronald Reagan in 1984.  Since the policy first came to be, every passing of the guard has seen the policy removed or reenacted.  President Clinton got rid of the policy nearly immediately on taking office, President Bush brought it back just as quick during his tenure, and President Obama nixed it within days of taking office.

With this in mind, the global gag rule wasn’t unexpected–what was unexpected was the additions President Trump included which further curtail reproductive rights around the globe.

So What Has Changed?

Trump’s global gag policy made some changes which, while subtle at a glance, actually represent fairly sweeping expansions on previous versions of the rule.  For instance, versions under Reagan and Bush both included exception for services provided by the government–Trump’s order has no such exception.  In fact, the changes are even more far reaching than that.  Previous versions applied only to family planning programs around the world–Trump’s gag policy applies to all health funding full stop.   Trumps version of the order also closes exemptions for hospitals and clinics which don’t offer abortion and situations where health providers treat women suffering complications after they seek an illegal or unsafe abortion–as they might be forced to do where abortion is made unavailable.

When George W.  Bush enacted his version of the policy, he included a carve out for the President’s Emergency Plan for AIDS Relief (PEPFAR).  This was because the rule would make the goals of PEPFAR–helping to treat AIDS in developing countries–impossible to achieve if the global gag rule had been applied to them.  Trumps rule, once again, has no such exception.

You’re probably wondering what kind of an impact these changes have on the assistance the U.S. offers to foreign countries.  The policy, as originally written, stopped a whopping $600M a year in foreign aid from helping those in need of reproductive care.  Trump’s expansions increase that number substantially, blocking potentially as much as $9.5B in funding.

What Will it Do?

The amount of money that could be taken away from people trying to provide women with safe health services is astronomical.  However, it is important to understand exactly what the global gag rule achieves in order to understand its full effect.  In order to that, it’s important to understand what it doesn’t achieve.

Trump Global Gag Order

Shortly after Roe v. Wade served to help delineate the situations in which a state could not impinge on a woman’s privacy and reproductive rights, Congress lashed out against abortion in one of the only legal ways it could.  In 1973, they passed the Helms Amendment to the Foreign Assistance Act–colloquially known as just the Helms Amendment.  This amendment actively serves to bar and U.S. tax dollars from funding “abortion as a method of family planning or to motivate or coerce any person to practice abortions.”  Thus, the Global Gag Policy isn’t in place to prevent money from going to abortions–the Helms Amendment has already seen to this.

Instead, the global gag rule seeks to go far beyond the Helms Amendment–punishing health service providers for even providing information on abortion as a family planning option.  What’s more, while federal law implies that the Helms Amendment has exceptions for situations such as rape, incest, or a pregnancy which threatens a woman’s life, the new version of the global gag rule has no such exclusions.  It does not even provide an exception for HIV/AIDS funding.

The gag rule also goes further than the Helms Amendment in another way.  While the Helms Amendment prevents U.S. dollars from funding abortions, the global gag rule works to limit how an organization applies its own funds.  Under the order, if an organization uses its own funds to even provide literature discussing abortion as a family planning option it is unable to receive funding from the U.S. government.

So what will the gag rule truly accomplish?  It will reduce funding to contraception and AIDS prevention services around the globe.  It will cut funding to organizations focusing of water and sanitation, child survival and education–killing children in developing countries.

The global gag rule has not served to reduce abortions abroad for an obvious reason.  The health service organizations it tends to target are also some of the primary providers of contraception and birth control.  Lo and behold, removing funding from the people who provide cheap access to contraception leads to more women seeking an abortion–some studies showed the number of abortions sought around the world increasing nearly 3 times over during periods where the gag rule is in effect.  History and the numbers under the past global gag policies have also shown that putting abortion out of reach does not stop women from seeking abortions–it forces women in developing countries to seek unsafe abortions.  In fact, the World Health Organization puts the number of unsafe abortions in developing countries alone at about 21M per year.  The deaths resulting from these unsafe procedures accounts for 1 in 6 maternal deaths.

Is it Legal?

For quite some time, despite its substantial potential for harm, the legality of the global gag rule has been supported by a 1991 Supreme Court case known as Rust v. Sullivan.  This case dealt with the ability of the government to place abortion-related conditions on organizations receiving federal funds.  The issue was framed as a potential First Amendment violation as the restriction in question in the case refused funds to organizations with doctors who informed patients about abortion as a medical option.  The Supreme Court upheld the restrictions, ruling that while Congress could not stop doctors from advocating for abortion through other separately funded programs, they can stop them from doing so using money provided by the government.  This has been interpreted to mean that the global gag rule in constitutional.

However, in 2013, another Supreme Court case may have changed the boundaries of Rust in such a way to bring legality of the global gag order into question.  The case dealt with a law which barred organizations from receiving government funding where the group advocated for legalizing sex work.  This included situations where the groups used their own money to support their advocacy.  The Supreme Court ruled that restricting activities “on [an organizations] own time and dime” was an unconstitutional condition on funding and violated First Amendment rights.

Executive orders, such as the gag rule, must be constitutional.  While the gag rule certainly does restrict the way organizations–both abroad and organizations within the U.S. with operations abroad–may use their own funds, it is still unclear whether these more recent changes would render the gag rule unconstitutional.  The global gag order has not been in place since the Supreme Court expanded on its position on Rust so no organization has had a chance to challenge it.  It’s likely that an organization whose funding has been jeopardized will bring a lawsuit arguing just this distinction in the coming days.

This is Our Reality

Until this legal uncertainty can be resolved, women at home and abroad will suffer for it.  Protecting a woman’s reproductive rights is crucial, providing women the right to autonomy over their own bodies is not a woman’s issue it is a human one.  The global gag order not only simply doesn’t achieve its goal, it takes reproductive choices out of the hands of women and forces them to look elsewhere–often at the risk of their own health.