AAUW supports the right of every woman to safe, accessible, affordable, and comprehensive family planning and reproductive health services. This position stems from AAUW’s 2007-2009 Public Policy Program, which advocates: “choice in the determination of one’s reproductive life” and “increased access to health care and family planning services and expansion of patients’ rights.”¹ AAUW members have made reproductive rights a policy principle since 1977.

AAUW trusts that every woman has the ability to make her own informed choices regarding her reproductive life within the dictates of her own moral and religious beliefs. Further, AAUW believes that these deeply personal decisions should be made without governmental interference.

The U.S. Supreme Court’s 1973 ruling in Roe v. Wade legalized abortion for all women and found abortion to be a constitutionally protected “fundamental right.” All women —regardless of race, religion, age, or socioeconomic standing — have a constitutionally protected right to choose. In order to be more than an abstract right however, this right must include real access to a full range of reproductive health and family planning options. Unfortunately, many of the most vulnerable groups of American women are being denied fundamental control of their reproductive lives due increasing restrictions successfully advanced by anti-choice lawmakers at both the state and federal levels. In this changing political environment, there are both threats to and opportunities for advancing issues related to woman’s reproductive rights.

Continued Threats to Reproductive Rights

• Judicial nominations. The recent pattern of extreme, activist judicial nominees being put forth by the Bush administration also threatens women’s reproductive rights. If ultra-conservatives are confirmed to the courts, they will have the power to undermine or alter legal precedents, such as those that protect a woman’s constitutional right to an abortion, and other civil and constitutional rights. Of particular concern is each nominee’s approach to settled law, or stare decisis.² This long established legal principle represents the weight that should be given to legal precedent. The strong emphasis the legal system gives to following precedent is meant to protect society from jarring changes to settled law.

  Cases involving reproductive rights issues continue to come before the courts, and now that the balance on the U.S. Supreme Court appears to have shifted against the Roe precedent, anti-choice advocates are actively seeking out cases to send to what they view as a more receptive court. For example, in 2006, the South Dakota state legislature enacted a law banning all abortions that its author admits was explicitly designed to challenge the Roe decision.³ Instead of filing a lawsuit, however, opponents of the South Dakota law gathered petition signatures to place the measure on the general election statewide ballot. While the ballot measure failed in November 2006,⁴ if the law had not been overturned it is likely it would have been challenged in court. This is just one limited example why it is crucial that nominees for these lifetime positions are carefully scrutinized and not hastily confirmed.
  

• Mandating parental consent or parental notification for contraceptive services. Anti-choice members of Congress have consistently attempted to mandate parental consent for minors receiving contraceptive services at clinics funded by Title X of the Public Health Service Act. Title X makes grants to public and private nonprofit organizations to provide family planning and basic reproductive health care information and services to low-income women. Parental consent laws would cause many vulnerable teens to delay or avoid seeking preventive health care services and counseling; minors who do not involve their parents often choose this route in fear of abuse, punishment, or their parents’ disappointment.⁵ Because minors’ rates of pregnancy⁶ and sexually transmitted infections⁷ in the United States remain among the highest of the developed countries, policy-makers must ensure confidential access to family planning, abortion, and other health care services for those young people who are unable or afraid to speak to a parent about these issues. Both parental consent and parental notification can jeopardize the health and welfare of the minor.⁸ Currently, all states allow minors to consent to testing and treatment services for STDs. Twenty-one states and the District of Columbia explicitly allow all minors to consent to contraceptive services, and another 25 affirm the right for certain categories of minors, such as those who are married or who have had a previous pregnancy. In the remaining states, the decision of whether to inform parents is typically left to a physician's discretion.⁹ In addition, 22 states require that a minor receive parental consent from at least one parent prior to obtaining an abortion, and 11 states require parental notification prior to an abortion.¹⁰

  AAUW believes that parental involvement in minors’ reproductive health care decisions is optimal and beneficial under the right circumstances. AAUW also recognizes that specific laws mandating parental involvement are counterproductive. While the intent of such laws is to enhance family communication, ultimately such measures make the mistake of assuming that government can mandate healthy family communication where it does not already exist. The failure to guarantee confidentiality and safety often deters young people from seeking timely services and care, which can result in sexually transmitted diseases, unwanted pregnancies, and higher-risk abortions.¹¹ AAUW believes that minors in all states should have unrestricted, confidential access to all health care services, including abortion.
  

• Banning a specific abortion procedure even in cases where the life and health of the woman are at risk. In November 2003, President George W. Bush signed the Partial Birth Abortion Ban Act of 2003. Three federal district courts and three appellate courts found the law to be unconstitutional because it lacked an exception for the woman’s health; these rulings were based on a U.S. Supreme Court decision that struck down a Nebraska law for the same oversight in Stenberg v. Carhart (2000).¹²

  However, on April 18, 2007, the Court reversed itself in Gonzales v. Carhart and upheld the Partial Birth Abortion Ban Act of 2003. This case is the first time the U.S. Supreme Court has approved a restriction on abortion access without any health exception. The Gonzales decision effectively reverses prior precedent and invites state legislatures to pass new abortion restrictions. It should be noted that this decision is a clear reflection of the new makeup of the Court. With the addition of Chief Justice John Roberts as well as Justice Samuel Alito’s replacement of Justice Sandra Day O’Connor, the shift has produced a court that seems poised to make an effective retreat from the core Roe principles.¹³
  

• Denying abortion coverage to some women. Two restrictions enacted in 2000 that ban abortion coverage for certain women remain in place: one for federal employees and one for women in the military. Under the first ban, federal employees lack the same abortion coverage in health insurance available to employees in the private sector. The second ban prevents military women and their dependents from receiving an abortion in military hospitals overseas, even if they pay with their own money. This restricts women from exercising a legally protected right simply because they are stationed overseas.

  Women must be free to enter any line of work without fear of being penalized simply because of their sex; it is a simple matter of fairness and impacts women’s economic security. Female military and federal employees are denied comprehensive reproductive health services through these restrictions that discriminate against women and women only. AAUW opposes any inequity in health care services caused only by an individual’s career choice or her sex.
  

• Restricting the availability and use of RU-486. In September 2000, after 12 years of debate and study, the U.S. Food and Drug Administration approved mifepristone, the drug commonly known as RU-486. Federal legislation proposes restricting women’s access to RU-486, a safe and effective medical alternative to surgical abortion, as well as a wholesale withdrawal of FDA approval for the drug.
  
• Elevating the status of a fetus under federal law. Anti-choice members of Congress continue to propose legislation to allow states to extend health care coverage to a fetus. Elevating the legal status of a fetus under federal law would undermine the foundation of a woman’s right to choose as set forth in Roe v. Wade, which holds that a fetus is not a person within the meaning of the 14th Amendment.

Opportunities to Improve Reproductive Rights While the threats against women’s reproductive rights remain, there are also opportunities for advancing a woman’s reproductive health care options.

• Passage of the Prevention First Act. The bill aims to expand access to preventative health care services that help reduce unintended pregnancy, the number of abortions, and the spread of sexually transmitted diseases while improving access to women’s health care. The bill includes the Title X Family Planning Services Act of 2007, which authorizes appropriations for family planning service grants and contracts under the Public Health Services Act. Anti-choice members of Congress have not supported adequate funding for Title X, which is critical in providing reproductive services to low-income women; in fact, taking inflation into account, funding for the family planning programs under Title X declined by 61 percent between 1980 and 2007.¹⁴ The increase in funding that would be provided by the Prevention First Act reflects about what the budget for Title X would be if it had kept up with inflation since 1980.¹⁵

  The Prevention First Act also includes provisions to increase insurance coverage for contraceptive prescription drugs, devices, and outpatient services; provide medically accurate information about contraception in education programs; increase education about emergency contraception; and require hospitals that receive federal funds to provide emergency contraception to victims of sexual assault. It also provides grants for teenage pregnancy prevention programs in at-risk communities and provides grants to states for family life education, including education on abstinence and contraception. In addition, it expands family planning services covered under Medicaid, which remains the largest source of subsidized family planning services.
  

• Expanding prescription drug coverage. Contraception and related outpatient services are basic health care for women and, like other basic health care needs, should be covered by health insurance policies. An insurance plan that specifically excludes women’s contraception, while covering other prescription drugs, services, and devices, represents sex discrimination in violation of Title VII of the Civil Rights Act of 1964.¹⁶ The Prevention First Act requires health insurance plans that cover prescription drugs and devices to provide equal coverage for contraceptive drugs and devices. In addition, plans that cover outpatient medical services would have to cover outpatient contraceptive services.¹⁷ This bill would facilitate access to contraception in a simple, cost-effective way and would reduce the rate of unintended pregnancies. And finally, as a federal bill, this act would apply to all health plans nationwide regardless of state laws. AAUW supports federal legislation which would ensure equitable coverage of contraceptive drugs, devices, and medical services in private health insurance plans.
  
• Expanding access to emergency contraception. Approved for use by the U.S. Food and Drug Administration in 1997, emergency contraception prevents pregnancy after unprotected sex or contraceptive failure. In May 2004, Barr Laboratories applied for over-the-counter status for Plan B, an FDA-approved emergency contraception pill. In 2006, after many political delays on the part of the administration and a Senate hold on the nomination of the new FDA commissioner by Sens. Hillary Clinton (D-NY) and Patty Murray (D-CA), the FDA legalized the purchase of emergency contraception without a prescription for women over the age of 18, with proof of identification. Girls 17 and under are still required to have a prescription from a doctor to purchase Plan B, and the pills are only available in drug stores with a pharmacist who is able to verify the consumer’s age and answer questions about the pills.

  AAUW encourages efforts to increase education and access to emergency contraception for all women, including minors, and believes emergency contraception should be available without a prescription. Greater awareness of and improved access to emergency contraception could help reduce the rates of unintended pregnancy and abortion in this country.
  

• Ensure access to legally prescribed or available contraception and emergency contraception. Despite the FDA’s recent decision to make emergency contraception available without a prescription to women 18 and older, reports of pharmacist refusals to fill prescriptions for EC and other forms of birth control continue. Currently, 4 states — Arkansas, Georgia, Mississippi, and South Dakota — have laws or regulations that allow pharmacists to refuse to fill prescriptions because of their personal beliefs. In the 2007 legislative session, 10 states introduced or considered 15 bills that would permit pharmacists and/or pharmacies to refuse to dispense, and in some cases, to refuse to refer or transfer a prescription to another pharmacy. Only 7 states — California, Illinois, Maine, Massachusetts, Nevada, New Jersey, and Washington — explicitly require pharmacists or pharmacies to ensure that valid prescriptions are filled, and pharmacy boards in five additional states have issued policy statements that prohibit pharmacists from obstructing patient access to medication or from refusing to transfer prescriptions to another pharmacy. In the 2007 legislative session, 11 states introduced bills that would require pharmacists or pharmacies to fill prescriptions for contraceptives.¹⁸

  AAUW believes pharmacies that dispense other prescription drugs, services, and devices should be required to fill women’s prescriptions for contraception, as well as sell emergency contraception to those who meet the FDA requirements. Pharmacies that may have employees whose personal belief systems run contrary to women’s reproductive rights should ensure that procedures are in place to fill a woman’s legal prescription or request for emergency contraception in a timely fashion. An individual employee’s personal beliefs cannot be allowed to trample on women’s constitutionally protected civil rights.

Conclusion
AAUW believes that improved pregnancy prevention programs, new technologies, and access to complete reproductive health services enhance women’s reproductive choices. Until threats to reproductive freedom end, AAUW’s advocacy of a woman's right to safe, accessible, and comprehensive reproductive health care will remain an integral part of its efforts to gain equity and justice for all women.

For more information, call 202/785-7793 or e-mail VoterEd@aauw.org.

AAUW Public Policy and Government Relations Department
January 2008