By BRITTANY N. GADDY and KELLY LIVINGSTON
Capital News Service
WASHINGTON – As reproductive rights are being restricted in nearly two dozen states, marginalized communities, including people of color and LGBTQ people, are being disproportionately impacted, according to activists.
A variety of abortion restrictions have been passed in 21 states, with others pending in state legislatures, according to data assembled by the Guttmacher Institute, a policy research center focused on abortion issues. Many of those laws are facing legal challenges.
One of those laws, the Texas Heartbeat Act, prohibits most abortions after a fetal heartbeat is detected, which happens around six weeks after conception, is one of the most restrictive, causing some Texans to flee the state to terminate their pregnancies.
The law, which the United States Supreme Court initially declined to hear in early September, is now slated for oral arguments in the court on Monday. The court will not rule directly on the constitutionality of the Texas law, but whether the Department of Justice can sue to block its implementation.
The high court will hear a challenge to a Mississippi abortion law, which bans most abortions after 15 weeks, on Dec. 1.
Abortion is often framed as a women’s issue, but activists push back, saying abortion restrictions also more broadly impact the LGBTQ community as well as other marginalized people.
“Since the founding of this country, the point has been to oppress and control those who are not cisgender, white, heterosexual men,” said Monica Edwards, federal policy manager for Unite for Reproductive and Gender Equity, a national reproductive rights advocacy organization. “So naturally, people of color and LGBTQIA+ folks have always been oppressed and disproportionately impacted by things like abortion restrictions.”
“We don’t talk about abortion access for transgender or nonbinary folks, we talk about it in this context of women,” Jennifer Driver, senior director of reproductive rights for the national policy organization State Innovation Exchange, told Capital News Service.
“Abortion access isn’t a cis- issue. There’s most definitely a bias. This notion that only a cis-identified woman can get an abortion and we are constantly reminding folks that no, no, no — trans and nonbinary folks need abortion access.”
An estimated 462 to 530 trans and nonbinary people received abortion care in 2017, according to a recent study from the Guttmacher Institute.
The estimate may be low because abortion-providing clinics do not always collect data on patients’ gender identities.
Pro-choice activists say limiting abortion in ways that require people to travel out-of-state to get the procedure creates an outsized impact on some groups, including people of color and LGBTQ people who are more likely to experience economic hardship.
Affordability of care can cause issues for even those trying to seek abortion services locally.
“Just because it’s legal in my state, doesn’t mean that I can actually have access to it,” Driver said.
For example, “if queer and trans folks of color have lower income levels or higher poverty levels, they have less access to some of these services,” Driver said. “And so those have dire impacts on those in that community.”
The anti-abortion group Texas Right to Life filed an amicus brief in the Mississippi abortion law case, known as Dobbs v. Jackson Women’s Health Organization, which also expressed disdain for what the group called, “the court-invented rights to homosexual behavior and same-sex marriage.”
In a subsection of the brief concerning impacts the overturning of Roe v. Wade could have on other court precedents, the group explains, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”
The brief adds that such rights are not deeply rooted in the nation’s history, and therefore cannot be described as fundamental rights. Referencing two cases that protected gay rights, the group concluded the section saying that Lawrence v. Texas and Obergefell v. Hodges are “…far less hazardous to human life, (but) are as lawless as Roe.”
Reproductive rights activists say restrictions placed on how federal funding can be used in healthcare, like the Hyde amendment, limit abortion access. Groups that disproportionately experience poverty are also more likely to rely on federal healthcare plans, like Medicaid.
The Hyde amendment, which was first passed in 1976, currently restricts the use of federal funds for abortions, except when a pregnancy results from rape or incest or endangers the life of a pregnant person.
Among Medicaid beneficiaries, 61.1% identify as non-white or are in a non-white ethnic group, according to an April 2021 fact sheet from the Medicaid and CHIP Payment Access Commission, which is a non-partisan federal agency that advises Congress and the executive branch.
Sen. Patty Murray, D-Washington, introduced a health and human services appropriations bill on Oct. 18 without the Hyde amendment.
“Every single person deserves to make their own decisions about pregnancy and parenting — but right now, the unacceptable reality is that the choices available to you still depend on your income, your zip code, or how you get your health insurance,” Murray said in a statement. “Right now, too many people can’t exercise their right to an abortion because of federal abortion coverage restrictions, or can’t afford the family planning services they need. That’s unfair and unjust — especially for women who have low incomes and people of color.”
Paula Saldaña, a Texas field coordinator at the National Latina Institute for Reproductive Justice, said U.S. Immigration and Customs Enforcement highway checkpoints create additional obstacles. She explained there are checkpoints 100 miles from the border that trap some people from leaving their communities to seek abortions in other states.
“… We believe that everyone should have access to reproductive health care — the full range, including abortion care,” Saldaña said. “Regardless of their income, their race, their immigration status.”
The Texas abortion law is unique because it deputizes private citizens to enforce it.
The Texas statute’s “vigilante justice scheme poses a significant threat to Black and Latinx communities, who are already subjected to race-based surveillance, policing, and violence by the state, and who now fear the same from their neighbors,” Ianthe Metzger, a spokeswoman for Planned Parenthood Federation of America, told CNS in an email.
Abortion restrictions like those in Texas and Mississippi, “didn’t come out of thin air,” Edwards said. “They’re just simply manifestations of centuries of white supremacy and misogyny.”
As the Supreme Court hears upcoming arguments on the Texas and Mississippi laws, pro-choice advocates say the future of abortion access is on the line.
“There already is this scenario of haves and have nots, and who has access and who doesn’t,” Driver said. “I think we will see two state scenarios — those states…protecting access, and those states where the devastating impact will fall most on those who are already marginalized.”
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