Where Abortion Fights Will Play Out In 2019

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Protesters demonstrate in front of the U.S. Supreme Court last July. (Tasos Katopodis/Getty Images)

With Democrats now in control of the U.S. House of Representatives, it might appear that the fight over abortion rights has become a standoff.

After all, abortion-rights supporters within the Democratic caucus will be in a position to block the kind of curbs that Republicans advanced over the past two years when they had control of Congress.

But those on both sides of the debate insist that won鈥檛 be the case.

Despite the Republicans’ loss of the House, anti-abortion forces gained one of their most sought-after victories in decades with the confirmation of Justice Brett Kavanaugh to the Supreme Court. Now, with a stronger possibility of a 5-4 majority in favor of more restrictions on abortion, anti-abortion groups are eager to get test cases to the high court.

And that is just the beginning.

鈥淥ur agenda is very focused on the executive branch, the coming election, and the courts,鈥 said Marjorie Dannenfelser, president of the anti-abortion organization Susan B. Anthony List. She said the new judges nominated to lower federal courts by President Donald Trump and confirmed by the Senate reflect 鈥渁 legacy win.鈥

The Republican majority in the U.S. Senate is expected to continue to fill the lower federal courts with judges who have been vetted by anti-abortion groups.

Abortion-rights supporters think they, too, can make strides in 2019.

鈥淲e expect 25 states to push policies that will expand or protect abortion access,鈥 said Dr. Leana Wen, who took over as president of the Planned Parenthood Federation of America in November. If the landmark 1973 Supreme Court decision Roe v. Wade is eventually overturned, states will decide whether abortion will be legal, and under what circumstances.

Here are four venues where the debate over reproductive health services for women will play out in 2019:

Congress

The Republican-controlled Congress proved unable in 2017 or 2018 to realize one of the anti-abortion movement’s biggest goals: evicting Planned Parenthood from Medicaid, the federal-state health insurance program for people who have low incomes. Abortion opponents don’t want Planned Parenthood to get federal funds because, in many states, it functions as an abortion provider (albeit with non-federal resources).

Though Republicans have a slightly larger majority in the new Senate, that majority will still be well short of the 60 votes needed to block any Democratic filibuster.

Because Democrats generally support Planned Parenthood, the power shift in the House makes the chances for defunding the organization even slimmer, much to the dismay of abortion opponents.

鈥淲e鈥檙e pretty disappointed that, despite having a Republican Congress for two years, Planned Parenthood wasn鈥檛 defunded,鈥 said Kristan Hawkins of the anti-abortion group Students for Life of America. 鈥淭his was one of President Trump鈥檚 promises to the pro-life community, and he should have demanded it,鈥 she added.

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Another likely area of dispute will be the future of various anti-abortion restrictions that are routinely part of annual spending bills. These include the so-called聽Hyde Amendment, which bans most federal abortion funding in Medicaid and other health programs in the Department of Health and Human Services. Also disputed: restrictions on grants to international groups that support abortion rights, and limits on abortion in federal prisons and in the military.

However, now that they have a substantial majority in the House, “Democrats are on stronger grounds to demand and expect clean appropriations bills,” without many of those riders, said Wen of Planned Parenthood. While Senate Republicans are likely to eventually add those restrictions back, 鈥渢hey will have to go through the amendment process,鈥 she said. And that could bring added attention to the issues.

With control of House committees, Democrats can also set agendas, hold hearings and call witnesses to talk about issues they want to promote.

鈥淓ven if the bills don鈥檛 come to fruition, putting these bills in the spotlight, forcing lawmakers to go on the record 鈥 that has value,鈥 said Wen.

The Trump Administration

While Congress is unlikely to agree on reproductive health legislation in the coming two years, the Trump administration is still pursuing an aggressive anti-abortion agenda 鈥 using its power of regulation.

A final rule is expected any day that would cut off a significant part of Planned Parenthood’s federal funding 鈥 not from Medicaid but from the Title X Family Planning Program. Planned Parenthood annually provides family planning and other health services that don’t involve abortion to about 40 percent of the program’s 4 million patients.

The administration proposal,聽unveiled last May, would effectively require Planned Parenthood to physically separate facilities that perform abortions from those that provide federally funded services, and would bar abortion referrals for women who have unintended pregnancies. Planned Parenthood has said it is likely to sue over the new rules when they are finalized. The Supreme Court upheld in 1991 a聽聽that were never implemented.

Abortion opponents are also pressing to end federal funding for any research that uses tissue from aborted fetuses 鈥 a type of research that聽was authorized聽by Congress in the early 1990s.

鈥淚t鈥檚 very important we get to a point of banning鈥 fetal tissue research 鈥渁nd pursuing aggressively ethical alternatives,鈥 said Dannenfelser.

State Capitols

Abortion opponents having pushed through more than 400 separate abortion restrictions on the state level since 2010, according to the Guttmacher Institute, an abortion-rights think tank. In 2018 alone, according to Guttmacher, 15 states adopted 27 new limits on abortion and family planning.

鈥淎bsolutely some [of these are] an exercise in what they can get to go up to the Supreme Court,鈥 said Destiny Lopez, co-director of the abortion-rights group All* Above All. 鈥淪ort of 鈥楲et鈥檚 throw spaghetti against the wall and see what sticks.鈥欌

But 2018 also marked a turning point. It was the first time in years that the number of state actions supporting abortion rights outnumbered the restrictions. For example, Massachusetts approved a measure to repeal a pre-Roe聽ban on abortion that would take effect if聽Roe聽were overturned. Washington state passed a law to require abortion coverage in insurance plans that offer maternity coverage.

The Federal Courts

The fate of all these policies will be decided eventually by the courts.

In fact, several state-level restrictions are already in the pipeline to the Supreme Court and could serve as a vehicle to curtail or overturn聽Roe v. Wade.

Among the state laws closest to triggering such a review is an聽聽banning abortion for gender selection or genetic flaws, among other things. Also awaiting final legal say is an聽聽banning the most common second-trimester abortion method 鈥 dilation and evacuation.

Related Topics

CourtsElectionsAbortionTrump AdministrationU.S. CongressWomen's Health

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