Even with Roe v. Wade still intact, reproductive rights took a hit under Trump

Mariah Jacobsen (left) and Madison Harakles dressed as handmaids at the Women's March on Boston Common last week.Jonathan Wiggs/Globe Staff

An occasional series about women’s gains and losses in the Trump era

The notion of overturning abortion rights, long an abstract threat, has calcified into an imminent likelihood with the anticipated confirmation of President Trump’s third conservative Supreme Court nominee.

But even with Roe v. Wade still intact, the landscape for reproductive rights has been dramatically reshaped over nearly four years of the Trump administration.

When Trump took office, women were guaranteed health care that didn’t penalize them for having babies or periods, requiring insurers, for the first time, to cover maternity care and birth control at no extra cost.

At the end of Trump’s term, women’s contraceptive coverage has been subjugated to their bosses' religious beliefs and their equal coverage is on the line as his administration argues that the Affordable Care Act should be invalidated.

One million fewer women are getting family planning subsidized by the federal government because Trump changed the rules in an effort to compel health clinics to end abortion. Low-income patients now must rely on stopgap measures by nonprofits and state budgets to plug the holes in the 50-year-old federal program.

And Trump’s appointments of conservative judges in federal courts across the country — capped by his nomination of Amy Coney Barrett to the Supreme Court — have emboldened state legislators to enact increasingly sweeping abortion bans aimed at testing the legal integrity of Roe v. Wade, the 47-year-old ruling that legalized abortion.

Trump’s impact has exceeded the expectations of abortion opponents, who doubted the sincerity of his commitment to their cause when he was a candidate. Back then, Marjorie Dannenfelser, president of the antiabortion group the Susan B. Anthony List, led women in denouncing Trump’s candidacy, saying they were suspicious of his past strong support for abortion rights and “disgusted” by his treatment of women. This summer, she published a book called “Life is Winning” that called his election “a watershed for the pro-life movement.”

Those on the opposite side of the culture wars grudgingly agree.

“What the Trump era has done has been a capstone on what the right has been trying to do to abortion access and reproductive rights for several decades,” said Ilyse Hogue, president of NARAL Pro-Choice America.

In retrospect, Hogue said, Trump sent an ominous — and telling — signal about his intentions during the campaign.

“It started with his statement that women should be punished,” Hogue said, recalling Trump’s March 2016 town hall assertion that abortion should bring penalties for women. (He later recanted and called for criminal penalties for doctors, if abortion were outlawed.)

One of Trump’s first acts in office — signing an executive order that made global health aid contingent on clinics denying abortion — came the day after the Women’s March, she noted.

“That was seen as an act of vindictiveness and it became a pervasive tone — gleefully robbing women of fundamental rights,” said Hogue.

Some of those rights had been newly granted by the Affordable Care Act, championed by President Barack Obama.

“The ACA was a game-changer for women’s health,” said Evelyn Kieltyka, senior vice president of program services for Maine Family Planning.

The ACA stopped insurance carriers from charging women higher premiums than men and gave women equal footing in getting their essential services covered. Previously, being pregnant could be considered a preexisting condition and maternity coverage could be hard to find outside of employer-sponsored plans. The ACA also demanded for the first time that all health insurers cover birth control with no cost-sharing.

Trump challenged the ACA in two ways. In a case now before the Supreme Court, he supported Republican efforts to invalidate the law, threatening its premise of equal coverage for women’s health needs. And his administration rewrote the rules to let employers deny birth control benefits based on their own moral or religious beliefs. The Supreme Court upheld the birth control rule in July.

Employers have not yet begun opting out of the coverage, largely due to the timing, said Mara Gandal-Powers, director of birth control access and senior counsel for the National Women’s Law Center.

In Massachusetts, contraceptive coverage will continue to be protected and cost-sharing will largely be prevented by a law passed to expand contraceptive access in 2017. But up to 126,000 women could lose coverage nationally, the Trump administration projected; the National Women’s Law Center expects far more, in the hundreds of thousands.

“Virtually any employer can say, I have a religious or moral objection to birth control,” said Gandal-Powers. “It really is up to your boss whether you get the coverage.”

Reproductive rights specialists argue that the decision was driven by ideology. The Trump administration’s rationale for changing the birth control mandate relied on religious researchers who dispute a fundamental public health tenet — that easier access to birth control reduces the rate of unintended pregnancies. Trump’s first appointee to oversee the nation’s family planning efforts disagreed with contraception and believed it didn’t work, Hogue noted.

Maria DeJesus, Marie O'Donnell, Cathy Carrigan and Emileo Chlela stood outside Planned Parenthood in Boston on Oct. 16 during a vigil. Craig F. Walker/Globe Staff

Likewise, Trump’s changes to the Title X family planning program, which funds birth control, as well as screenings for sexually transmitted diseases, breast and cervical cancer, and HIV/AIDS, were aimed at making abortion less accessible.

The Title X program, which serves low-income patients, had been enacted under President Richard Nixon under the premise that family planning was a public good. Like Ronald Reagan and George Bush before him, Trump tried to address the longstanding concerns of abortion opponents that the Title X funding a clinic accepts could indirectly subsidize abortion, which cannot be funded with federal money. Now, in order to receive Title X funding, health providers have to completely disentangle abortion services from their other health and family planning services. The rule was so sweeping that providers said they would have to remodel clinics and operate two sets of financial books to comply.

Many clinics, including Planned Parenthood nationally, gave up the funding rather than deny abortion as an option, saying it would be tantamount to medical misinformation.

Maine, Vermont, Utah, Washington, Oregon, and Hawaii now have no Title X providers, and the number of health centers receiving family planning funds nationwide has diminished. The 2019 annual report of the Office of Population Affairs shows Title X served about 1 million fewer patients last year than it had before Trump took office. Some patients are still getting services, but at a heavy cost to other entities. In Maine, clinics are relying on private fund-raising and financial reserves to continue serving low-income patients, a plan that is not sustainable, said Kieltyka, of Maine Family planning. Other state governments, including Massachusetts, filled the federal gap with state money.

Massachusetts has been largely protected from changes to reproductive health. In addition to making up federal family planning funds, state leaders enacted a law in 2017 to protect free birth control access, regardless of federal rollbacks. Abortion is protected in Massachusetts due to a court ruling that found the rights secured by the state Constitution.

But Massachusetts has stopped short of codifying Roe v. Wade into state law as Illinois, New York, Vermont, and Rhode Island all did last year to adopt abortion protections that could withstand the reversal of Roe.

Those progressive states are creating oases of abortion rights on a map increasingly dominated by states with restrictions that make it difficult or time-consuming to get an abortion. States had been passing more aggressive laws trying to curtail abortion since 2011, when the rise of the Tea Party and the conservative pushback to Obama put more conservatives in State Houses. Since Trump took office in 2017, states have enacted about 150 new abortion restrictions, many directly aimed at challenging Roe, said Elisabeth Smith, chief counsel of state policy and advocacy for the Center for Reproductive Rights.

“They believe they have a partner in trying to overturn the federal right to abortion," Smith said.

Antiabortion activists have been encouraged by Trump’s appointment of conservative judges believed to be sympathetic to their cause. By the Susan B. Anthony List’s count, Trump has appointed some 216 federal judges.

“The most far-reaching piece of his legacy will be three — and potentially more — outstanding, constitutionalist Supreme Court justices,” Dannenfelser said in a statement.

The confirmation of Supreme Court Justice Brett Kavanaugh was what most dramatically accelerated the pace of states' antiabortion efforts, said Elizabeth Nash, interim associate director of state issues for the Guttmacher Institute.

“It was almost like a switch went off,” said Nash, whose research organization supports abortion rights.

Alabama banned abortion outright. Georgia, Kentucky, Louisiana, Mississippi, and Ohio banned abortion after a fetal heartbeat can be detected, effectively at six weeks of gestation, a time that many women have just confirmed their pregnancies. Missouri limited abortions to eight weeks gestation; Arkansas and Utah halted it at 18 weeks. Indiana and North Dakota banned certain methods of abortion,; and many barred ending pregnancies based on Down syndrome, genetic anomalies, or sex selection.

All told, 25 abortion bans were enacted in 12 states last year alone.

None of those laws has yet gone into effect, since Roe remains intact, but any could be used to challenge it. And some will prove unsuccessful. The Supreme Court in June found unconstitutional a Louisiana abortion law that would have required abortion providers to have admitting privileges at a nearby hospital.

But collectively, the laws foreshadow what the landscape might look like post-Roe if one of the challenges succeeds before the new court.

Ten states have “trigger bans" already on the books that would end abortion immediately if Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah.

Planned Parenthood estimates that nearly half of the states — home to some 25 million women — have laws or legislatures in position to ban abortion quickly if Roe is overturned.

Liberal women warned about just such an outcome when they took to the streets the day after Trump’s inauguration, in the largest one-day protest in American history. Last Saturday, Women’s Marchers took to the streets again, in all 50 states. As they have every year since the first march, some women dressed as handmaids, in symbolic warning of the threat of a woman-controlling theocracy imagined by Margaret Atwood in “The Handmaid’s Tale.”

At Boston’s march, 49-year-old Sarah Carroll of Quincy toted a sign paying tribute to the late Supreme Court Justice Ruth Bader Ginsburg, a feminist icon whose anticipated successor, Barrett, once held the title of “handmaid,” a female leadership position in her small Christian community.

The fears that women raised at the first Women’s March are no longer theoretical, Carroll said. Barrett’s confirmation to the court could foreseeably result in the unraveling of the ACA during a pandemic and the reversal of the right to abortion after 47 years.

“It’s come full circle now,” she said.