Abortion, Rape, and the Shameful Legacy of the Hyde Amendment

Abortion access is the only fundamental constitutional right that is constrained by how much money a woman has and how far away she lives from an abortion provider.  The result -- poor women bear the greatest burden of this legal discrimination; with the discriminatory effect felt most acutely by women of color and in immigrant communities.  And while the impact of the Hyde Amendment continues to grow, there seems to be next to no political will to do anything about it.  Moreover, as a result of the political legitimization of the Hyde Amendment we are now seeing the continuing erosion of the fundamental need to provide abortion services for rape victims, regardless of their economic status. 

Meanwhile, the continuing national fight over Planned Parenthood defunding efforts in the states like Indiana, Kansas, Texas, New Hampshire, Oklahoma, North Carolina, Minnesota, Utah, and Wisconsin has forced the Obama administration to draw a line in the sand.  State efforts to defund and disqualify Planned Parenthood from the Medicaid program are illegal.  Federal Medicaid law prohibits any states from limiting a Medicaid beneficiary’s family planning choices based solely on the fact that the provider in question also happens to provide abortion services.  This is settled law.  Similarly, efforts to limit federal funding for abortions under the Hyde Amendment for rape and incest victims also violate federal Medicaid law.  However, two states are now attempting to do just that, following in the footsteps of a third state that has been violating federal Medicaid law since 1994. 

Iowa and Louisiana are attempting to limit federal funding for abortions under the Hyde Amendment solely for cases of life endangerment.  South Dakota has been limiting federal funding for abortions under the Hyde Amendment solely for cases of life endangerment ever since the Clinton administration expanded the Hyde Amendment to include pregnancy resulting from rape or incest in 1994.  South Dakota has never faced any sanctions from the federal government for this blatant violation of federal Medicaid law. 

In Iowa, House Republicans are pushing legislation to eliminate the rape and incest exceptions explicitly permitted under the Hyde Amendment.  Last week, the Des Moines Register reported:

Every state but South Dakota follows the federal requirements, according to the Guttmacher Institute, a reproductive health advocacy organization in New York.  The Iowa proposal mirrors South Dakota law: It allows Medicaid to pay for abortions only when a mother’s life is jeopardized and not in cases of rape or incest.  Iowa human service officials were investigating earlier this year whether Iowa would risk losing billions of dollars in federal Medicaid grants if the proposed legislation were adopted.  However, federal officials have not taken such action against South Dakota.  Since 2005 there have been three Medicaid-paid abortions for cases of rape in Iowa.  There were no requests for abortions resulting from rape or incest last calendar year, according to information from the Iowa Department of Human Services.

Responding to this proposed legislation, ACLU of Iowa legal director Randall Wilson, said, “[w]hat are we saying here?...We’re saying that if a rich woman is raped, she can get an abortion because she can afford one, but a poor woman will have to bear the child.  There’s no social justice in that.”

And last month the Times-Picayune reported, that a bill approved by the Louisiana House Health and Welfare Committee:

…would make it a crime to provide an abortion or prescribe drugs with the intent of ending a pregnancy.  There would be exceptions for medically necessary abortions, as certified by a physician, but not for cases of rape or incest.  The measure also would bar the Louisiana Medicaid program from covering any abortion, also with no exception for cases of rape or incest, a move that state health officials said could threaten about $5 billion in federal Medicaid financing.

The Guttmacher Institute explains that the Hyde Amendment, while only permitting the use of federal funds for abortion,

…in cases of life endangerment, rape or incest, has guided public funding for abortions under the joint federal-state Medicaid programs for low-income women.  At a minimum, states must cover those abortions that meet the federal exceptions.  Although most states meet the requirements, one state is in violation of federal Medicaid law, because it pays for abortions only in cases of life endangerment.

In response to this latest attempt to exclude rape and incest victims from Medicaid coverage, the federal government recently warned Louisiana that their Medicaid funds could be cut off.  The bill “…defines human life as beginning at the moment of conception and makes it a crime to terminate a pregnancy except when the birth would endanger the mother's life…” 

Stephen Russo, the executive counsel for the Louisiana state Department of Health and Hospitals, said that the Centers for Medicare and Medicaid Services contacted his office and told him that, “…Louisiana cannot continue to receive federal funds for Medicaid if it violates the Hyde Amendment.”  Notably, in 1993, when Louisiana refused to comply with the expanded Hyde Amendment that included abortion coverage for rape and incest, the Centers for Medicare and Medicaid Services “…said that a state can't participate in Medicaid if it doesn't fund abortions outlined in the Hyde Amendment's exceptions. 

Fortunately, The Advocate reported yesterday that the Louisiana legislation “…suffered a likely fatal blow Wednesday when it was sent to a Louisiana House committee amid concerns the measure could cost the state $4.5 billion in federal health care funds… the House voted 65-30 to instead send the measure to the House Appropriations Committee because of concerns the bill would run afoul of federal law.”  The House Appropriations Committee Chairman explained that the proposed legislation needed to be re-examined because it “…does not include an exemption for pregnancies resulting from rape or incest…[and]…could jeopardize funding…”  The original sponsor of the bill, state Representative John LaBruzzo (R), pleading with the Louisiana House said, “…re-turning it to a House committee for further study would kill the measure because the Legislature adjourns on June 23.”  LaBruzzo also challenged the argument “…that the state stood to suffer a major loss of federal funds if his bill became law…[saying]…It is not realistic.” 

Of course, these ongoing attempts in the states to limit all funding for abortion services, whether directly or allegedly indirectly is nothing new.  Slate’s Dahlia Lithwick points to a 2002 Guttmacher Institute report that “…indicates, efforts to deny family planning funding to any agency that also provides abortions go way back: The ‘campaign—to ban both direct and 'indirect' government support for abortion—was conceived almost before the ink was fully dry on the 1973 Roe v. Wade decision.’  The report also makes clear such efforts have failed time and again in both state and federal courts.”  Meanwhile, the fight over Planned Parenthood and abortion rights will most certainly be a mainstay during the 2012 elections, with everyone taking sides in the abortion messaging war. 

Does this movement in Louisiana and Iowa represent an extension of an emboldened anti-choice movement being spurred on by the ongoing campaign to stop the alleged indirect funding of abortions at Planned Parenthood?  Or does this attack on the Hyde Amendment actually represent an alarming political shift regarding rape and incest victims revealing something far more insidious: the further trivialization of rape and rape victims by anti-choice politicians?

Limiting federal funding of abortions became a national focus within the House of Representatives this year with attempts by the GOP leadership to redefine or limit the meaning of the Hyde Amendment’s rape exception to mean only “forcible rape” leaving open cases of statutory rape or possibly date/acquaintance rape.  In late January, when Representative Chris Smith (R-NJ) “…introduced the No Taxpayer Funding for Abortion Act (H.R. 3), which sought to further restrict abortion funding for all women…in drafting an exception to allow abortion funding for survivors of rape, the bill defined ‘real’ rape exclusively as ‘forcible’ rape.  For sexual assaults that didn’t fit that narrow definition, funding for an abortion would be denied.”  But when the GOP leadership was confronted with an onslaught of outrage, they decided to eliminate the “forcible rape” language from H.R.3. 

And even though the ensuing outrage that followed that first attempt to redefine rape under the Hyde Amendment failed, Mother Jones reported that the GOP leadership was back at it again in May. 

Republicans were insisting that Medicaid has never paid for abortions in the case of statutory rape.  However, the “…Center for Medicare and Medicaid Services (CMS)…say that's not true: existing law doesn't allow states to distinguish between different types of rape when it comes to funding abortions.”  In fact, a CMS spokeswoman stated, "[a]s we said before, we have always considered rape to be rape and we have never made a distinction under the Hyde amendment on different types of rape under any administration that we can remember…I hope this is settled now: rape is rape."  Moreover,

Republicans offer no evidence…that Hyde distinguishes between statutory and "forcible" rapes.  And no such evidence seems to exist.  Congressional Quarterly's summary of the legislative history of the current version of the Hyde Amendment contains no mention of statutory rape. 

The House GOP leadership was and still is being heavily influenced by the U.S. Council of Catholic Bishops and the National Right to Life Committee.  The National Right to Life Committee believes that the statutory rape exception is a “…’brazen effort’ by abortion rights groups to exploit the rape exception…” in the Hyde Amendment.  They believe this statutory rape “excuse” is just a plan to "…federally fund the abortion of tens of thousands of healthy babies of healthy moms, based solely on the age of their mothers." And the U.S. Council of Catholic Bishops argued that the House GOP leadership was simply trying "…to prevent the opening of a very broad loophole for federally funded abortions for any teenager." 

Meanwhile, Ms. Magazine and the Feminist Majority Foundation have been waging an online campaign asking the Department of Justice and the FBI to change the very definition of rape.  Notably, “[s]ince 1929, the FBI’s Uniform Crime Report (UCR), which tallies all crimes reported to local law enforcement each year, has used this archaic definition of rape: ‘The carnal knowledge of a female forcibly and against her will’.”  This archaic definition leaves out many rape victims from the official FBI statistics, including:

…victims of nonconsensual sodomy and oral sex, and those raped with fingers, fists, or objects.  And all male victims, of course.  Also, because the definition includes the word ‘forcibly, police departments often interpret the rule (against UCR guidelines) as leaving out rapes of women with physical or mental disabilities and those who were unconscious or under the influence of drugs and alcohol (despite the fact that at least 22 percent of all rapes involve those substances or incapacitated victims—and some studies put the number as high as 77 percent). The assumption, strangely, is that those women weren’t ‘forced.’

And recently CNN op-ed contributor LZ Granderson argued that the abortion debate “trivializes rape” pointing to remarks made recently by “…Kansas State Rep. Pete DeGraaf…during a debate centered on banning insurance companies in Kansas from offering abortion coverage as part of their general health plans unless a woman's life were at risk.”  Granderson provided other examples of politicians’ disregard for rape victims saying, “[i]t shouldn't really matter which side of the fence you stand on regarding abortion: that tone, that rationale, has no place in the debate.  That more people, more women, were not angered by DeGraaf's statements only highlights just how little we are paying attention to lawmakers.” 

Then, there is the idea promoted by some in the anti-choice movement that women will actually lie about being raped to get free abortions.  Back in March, Indiana state Representative Eric Turner (R) made the following statement regarding a proposed amendment to legislation enacting a 20 week abortion ban that would have exempted rape and incest victims: “I don't want to disparage in any way someone who has gone through the experience of a rape or incest -- but someone who is desirous of an abortion could simply say that they've been raped or there's incest."  The amendment to the 20 week abortion ban, which Governor Mitch Daniels signed into law last month, failed.

CNN’s Granderson goes on to say:

If men feel comfortable enough to be on the legislative floor and suggest that women and girls lie about rape, or recommend that it is something they should prepare for, one can only imagine what is being said behind closed doors… The notions that rape is a possibility that women should plan for, or that abortions should not be provided to victims of rape or incest because some women might lie about an attack to get their insurance company to pay, reek of misogyny.

And, as part of the campaign to promote the Mississippi personhood amendment that “…would define a ‘person’ in the state’s constitution as ‘every human being from the moment of fertilization, cloning, or the functional equivalent thereof’…,”  Personhood USA is traveling around Mississippi on a “Conceived in Rape” tour advocating legislation that would force rape victims to bear children resulting from rape.  A spokeswoman for the organization said, “[i]f you really care about a rape victim, you would want to protect her from the abortion, and not the baby.  A baby is not the worst thing that could ever happen to a rape victim – an abortion is.”

Finally, there is the ongoing and shameful military ban on abortion coverage for our servicewomen.  On May 24^th the House Committee on Rules “…rejected an important amendment to the FY12 National Defense Authorization Act (H.R. 1540) that would have ended an unconscionable ban on insurance coverage of abortion care for military women and dependents in cases of rape and incest.” 

But on June 2^nd, Representative Louise Slaughter (D-N.Y.) and Senator Kirsten Gillibrand (D-N.Y.) “…introduced the Military Access to Reproductive Care and Health Act (MARCH)… a bill that would authorize federally-funded abortions for women in the military who have been impregnated as the result of rape…[and]…would also allow servicewomen to use private funds to access abortion services at U.S. military facilities…”  Representative Slaughter said in a press release:

As our servicewomen risk their lives defending our country, it is deeply unfair that they are denied the rights of the Constitution that they defend.  Imagine being a victim of rape on a United States military base overseas being denied the abortion coverage, and then having to turn to a potentially unsafe local facility. It’s preposterous and incredibly unjust to the women who serve our country so proudly each day.

With the ongoing rape and sexual assault epidemic plaguing our military, it is truly indefensible to impose this punitive restriction and deny our servicewomen basic reproductive health care services.  And it is “…this discrepancy — putting servicewomen on a different plane than federal employees, federal prisoners and Medicaid recipients…that fuels much of the anger among those trying to change the policy.”  

At the ACLU Blog of Rights, Sarah Lipton-Lubet explained:

In the face of this epidemic, federal law denies servicewomen and military families coverage for abortion care, even in cases of rape or incest. By contrast, the federal bans on abortion coverage for women enrolled in Medicaid, disabled women enrolled in Medicare, federal employees (other than members of the armed services), women who receive health care through the Indian Health Service, and women in federal prisons, all include exceptions for rape survivors. (The only other coverage restriction that doesn’t include a rape exception is the ban on abortion coverage for another group of women serving our country — those in the Peace Corps.)

And a recent San Francisco Chronicle editorial remarked that “[a]s a point of simple fairness, it is not right that the federal government covers abortion in the instance of rape for other federal employees, Medicaid recipients and those serving time in federal prisons, but not for female service members…It is an abuse of power by Congress over these women's lives.” 

The shocking statistics of sexual violence within the military cannot and should not be ignored; and to do so by punishing our servicewomen in this most shameful manner serves no purpose beyond fostering the ongoing belief that rape victims are simply undeserving of their fundamental reproductive rights.

Reproductive rights should not be a luxury enjoyed only by wealthy women – fundamental rights should not be defined by the amount of money in a woman's pocket.  Accepting the Hyde Amendment as an inevitable and fated political reality means that we have ceded those rights as not being rights at all anymore.  And sadly, by accepting that reality we provide the political and societal leeway to further demonize abortion rights; that demonization inevitably creates opportunities for the anti-abortion movement to mainstream the notion that rape victims are undeserving of reproductive justice.  The pro-choice community must be willing to mount a full-throated offensive against the fundamental injustice of the Hyde Amendment.  Only then can we fight back against the rising movement to further erode abortion rights for rape victims.