Last October, Savita Halappanavar, was admitted to an Irish hospital with severe back pain. She was 17 weeks pregnant and in the process of miscarrying. A little over a week later, she died from blood poisoning. Doctors maintained that their “hands were tied” by Ireland’s strict anti-abortion laws. However, the leaked draft report by the Irish health ministry indicates that doctors failed to diagnose the infection for three days and, furthermore, that medical staff should have considered performing an abortion procedure even before Dr. Halappanavar asked for one.
Abortion is illegal in Ireland under all circumstances, except where there is a “real and substantial” risk to the mother’s life. The European Court of Human Rights ruled in 2010 that this law violated Ireland’s own constitution as well as the European Convention on Human Rights by failing to specify an effective procedure to determine whether a woman was sufficiently endangered for termination to be legal. Even if a termination of Dr. Halappanavar’s pregnancy was not technically illegal, her doctors were at least hesitant to subject themselves to the possibility of criminal liability.
Compared to its situation in Irish law, the legality of abortion in United States law couldn’t be clearer. If there is one Supreme Court case that reigns supreme in popular knowledge of American law, it is Roe v. Wade. And regardless of an individual’s opinion of the decision, its message is clear: Abortion is legal. Moreover, according to an NBC/Wall Street Journal poll released last month, 70 percent of Americans oppose overruling Roe v. Wade.
Yet pro-life activists received an unexpected windfall in insurance exchanges set up under the Affordable Care Act. States that choose to set up their own exchanges are allowed to dictate the rules for insurers who participate. At least 21 states are now developing regulations that would prevent health insurers from covering the cost of an abortion, thereby effectively restricting a woman’s ability to make health care decisions.
Since the Hyde Amendment already prohibits the use of federal funds to pay for abortions, additional state-specific restrictions on insurance coverage of abortions make the procedure practically inaccessible. According to the Guttmacher Institute, in 2009 the median charge for a surgical abortion at 10 weeks was $470, with the average being $451, since the majority of abortions are performed at facilities with lower charges. In 2008, 60 percent of women paid out of pocket; most women now pay the costs out of pocket because they are afraid that their employers or their spouse will find out. That’s the equivalent of almost one month’s rent at several apartment complexes just off of Duke’s campus. And since poor women are more likely to terminate their pregnancies than their middle class peers, this $450 cost falls disproportionately on women who do not have the money to spend.
This may be cause for joy among pro-life activists, but as long as Roe v. Wade remains good law, it is true that the cost of an abortion effectively restricts these women’s ability to make health care decisions. If the purpose of the Affordable Care Act is to provide access to quality, affordable health care for all Americans, then why should abortion, as long as it is legally recognized as a private medical decision to be made between a patient and her doctor, be excluded from this aim? Why should states be entitled to dictate to insurance providers what they can and cannot cover?
Most importantly, the increasing number of restrictions on access to abortion must be evaluated in light of the steadily increasing maternal mortality rate in the United States. The U.S. currently ranks 50th in the world for maternal mortality, despite the almost $98 billion spent every year on hospitalization for pregnancy and childbirth. Over the past two decades, the rate has more than doubled, from 6.6 deaths per 100,000 live births in 1987 to 16.1 per 100,000 live births in 2009. Perhaps most shocking is the fact that black women are 3.2 times more likely to die during pregnancy or childbirth than white women.
Dr. Halappanavar’s tragic story may be particularly infuriating because of her doctors’ explicit argument that the illegality of abortion prevented them from taking the necessary steps to save her life, but several states in this country are in danger of moving in effectively the same direction. By severely restricting insurance companies’ ability to cover the cost of abortion, these states are restricting access to abortion itself. Such constraints simply do not align with the larger purpose of the ACA to provide quality, affordable health care to all Americans. Dr. Halappanavar’s case illustrates the danger of near prohibition of abortion, and, in light of the increasing maternal mortality rate in this country, we should take steps to ensure that economics does not determine a mother’s life.
Joline Doedens is a first-year law student. Her column runs every other Monday. You can follow Joline on Twitter @jydoedens.
