How a Trump presidency will threaten women’s reproductive rights

The pill.
The pill.
Image: AP Photo/Rich Pedroncelli
We may earn a commission from links on this page.

For many women in America, the election of Donald Trump feels first and foremost like an attack on their bodies.

As early as the night of Nov. 8, they started encouraging each other to make an appointment to get an intrauterine device (IUD), a long-acting and reversible birth control method that could outlast a Trump presidency.

The fear is a Trump administration—along with a GOP-controlled Congress—will do away with President Barack Obama’s Affordable Care Act, and with it, women’s right to free birth control. In addition, many are concerned that Trump could further curb women’s reproductive rights by introducing obstacles to abortion access.

Repealing the Affordable Care Act

Under Obamacare, birth control for women is free, in any form, from pill to IUD. In 2012, 15% of American women were getting free contraception; in 2015, it was 67%. Obamacare saves women $1.5 billion a year, according to one study. Trump is opposed to the law and has said he would nix it as president. With Congress dominated by Republicans—almost all of whom share Trump’s view—the health care reform stands little chance.

That’s why women are now urging each other to get an IUD, a birth control method that lasts for years. It’s safe and highly effective, but can be expensive if not covered by health insurance (according to Planned Parenthood, up to $1,000). If social media posts  are any indication, many women have already made appointments to get the devices implemented in the wake of the election.

What exactly will happen to Obamacare is unclear. As Jennifer Haberkorn, writing for Politico, points out, Trump was less adamant about repealing the law than other presidential candidates in the Republican primaries, and swiftly getting rid of a healthcare option that covers 20 million Americans could be very unpopular. What’s more, completely repealing the act in Congress will be a long and difficult process, despite the leverage the Trump administration and GOP lawmakers now have.

In other words, American women might have some time to think through their long-term birth control plans.

A vehemently anti-abortion vice-president

Trump himself has flip-flopped on abortion, so anything he said in the past should be taken with a grain of salt. But Mike Pence, his second-in-command, has been a staunch anti-abortion crusader. We don’t know whether this will translate into any sort of specific policy changes, but it certainly means that the anti-abortion faction will have a prominent voice in the Trump White House.

Just this year, as governor of Indiana, Pence signed into law a bill that would ban abortions where the reason is the diagnoses of a disability. His effort to defund Planned Parenthood in Indiana led to the closing of a number of clinics. His plans for reproductive rights once the Trump administration moves into the White House? “We’ll see Roe v. Wade consigned to the ash heap of history where it belongs,” he said at a town hall in Michigan in July.

A conservative-leaning Supreme Court

Trump will be nominating a candidate to fill the vacancy on the Supreme Court still left after the February 2016 death of Antonin Scalia. With a Republican-controlled Senate judiciary committee, anyone Trump picks is likely to get rubber-stamped in, and it will almost certainly be someone “very much in the mold of Scalia,” as he promised. We already know who is on his shortlist, and the roster is not exactly filled with champions of reproductive rights. It includes Charles Canady, who is on the Supreme Court of Florida, and who, as a congressman in 1995, proposed a federal ban on “partial-birth abortions” (a phrase he coined). Another shortlisted candidate, Tenth Circuit Court of Appeals judge Timothy Tymkovich, ruled in the 2014 case Burwell v. Hobby Lobby that privately owned companies did not have to provide their employees with contraception as part of their health insurance plans.

Whoever ends up on the bench, the court will have the same balance as before Scalia’s death, with four liberal justices, four conservative, and the swing voter, Anthony Kennedy. However, two of the liberal justices, Ruth Bader Ginsburg and Stephen Breyer, are both over 78, the average age when Supreme Court justices have retired in the past. Both are expected to leave the bench before Trump’s term is over. This would give him the opportunity to appoint more right-leaning justices, which could threaten the seminal 1973 ruling in Roe v. Wade that declared women’s constitutional right to abortion.

One way that Roe v. Wade could be challenged, writes Robin Marty in Cosmopolitan is the Pain Capable Unborn Child Protection Act that Trump promised to pass in his letter to the pro-life community in September. The legislation, which failed in the Senate in 2015, bans abortions nationally 20 weeks after fertilization or 22 weeks after gestation. Twenty-two weeks, according to most doctors, is too early to detect all fetal anomalies—that means the Act would be conflict with Roe v. Wade, which prohibits any ban on abortion before it can be determined if a fetus is damaged or not. Marty argues that if the ban becomes federal law, it could be challenged in courts, potentially reaching the Supreme Court and giving the country’s highest justices the opportunity to reassess Roe v. Wade.

Making the Hyde Amendment permanent law

Trump’s list of promises to anti-abortion activists also includes making permanent the Hyde Amendment, a legislative provision that is often tacked on as a “rider” to various appropriations bills. When used, it essentially prohibits any funds in the bill to which it is attached from being used to pay for abortions, except in the case of rape, incest, or if the mother’s life is in danger. Historically it has been used primarily in ways that restricts the use Medicaid funds.

“The Hyde Amendment means that American women—many of them women of color—who cannot afford health insurance are effectively prevented from availing themselves of a legal medical procedure that is their right,” writes Rebecca Traister at New York Magazine.

In 2016, Hillary Clinton made repealing the Hyde Amendment an important part of her presidential campaign, and for the first time it was part of the Democratic party platform. Emily Crockett at Vox explains that over the years, pro-choice activists and politicians were more focused on battling new restrictions than trying to eliminate Hyde. An onslaught of new anti-abortion measures starting in 2010, however, galvanized activists to organize an effort fight the amendment on economic justice grounds.

If Trump were to make the Hyde Amendment permanent, Medicaid funds would be indefinitely blocked from use to pay for abortions except in the rare cases listed earlier.

Defunding Planned Parenthood

Trump has also promised to defund Planned Parenthood, because of the “abortion factor” even though he acknowledged the organization’s important role in providing access to healthcare for women. Republicans in Congress tried last year to eliminate about $500 million in federal funds for the organization, but Democrats staved off the effort. Now, the Medicaid money funneled to the organization will be under threat once again.

The argument for defunding Planned Parenthood is fundamentally flawed. The organization’s clinics provide cancer screenings and testing and treatment for sexually transmitted diseases, among other services—abortions and related treatments make up only 3% of services, and are not funded by federal money.

State-level anti-abortion efforts

Any federal action on abortion comes in addition to the obstacles that local authorities have been creating at a state level in recent years. For example, various states have passed legislation cutting off Medicaid funding for Planned Parenthood, and revoking clinics’ abortion licenses.

According to the Guttmacher Institute, between January 1 and July 17, 2016, states passed 46 new abortion restrictions. Since 2010, states have adopted 334 restrictions—a whopping one-third of all such provisions enacted since the Roe v. Wade ruling in 1973.

An anti-abortion climate in DC will make these sorts of efforts easier for like-minded local legislators.