Toward a Reproductive Justice Framework Based on Meaningful Family Choice

By Amanda Woog, JD, and Shetal Vohra-Gupta, PhD*


Earlier this year, in Whole Woman’s Health v. Hellerstedt, 579 US _ (2016), the Supreme Court held unconstitutional two provisions in Texas’s 2013 omnibus abortion law. The provisions were designed to shutter abortion facilities – after the law passed, more than half of Texas’s 41 abortion clinics closed – and the Supreme Court correctly found that “each [provision] places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.” The Court’s decision will help reverse the harmful effects of the Texas legislation (though not fully and not immediately), and will likely result in the invalidation of Targeted Regulation of Abortion Providers (“TRAP”) laws in other states, which have been a recent scourge on abortion access across the country. Since the Supreme Court opinion was handed down, media have reported that similar laws in Alabama, Arizona, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Carolina, Tennessee, Utah and Wisconsin may also be in jeopardy.

This decision is a victory for all people who believe that freedom and dignity inhere in the right of every person to make his or her own reproductive decisions without government intrusion. But the decision is only a step toward the full realization of such a right. For most women in the United States, particularly poor women and women of color, full reproductive choice remains an illusion. Reproductive choice must not only include the right to abortion care, but also the right of all women to access abortion care, and the full freedom to bear, birth and raise a healthy baby. In these respects, there is still much work to be done. This essay proposes several steps toward the full realization of reproductive choice.

Inability to afford abortion care

Since the Hyde Amendment was first passed in 1976, Medicaid and other federal government funding has been barred from abortion care. In addition, 25 states restrict private insurance or insurance purchased on health exchanges from offering abortion care. According to the National Network of Abortion Funds, the average first-trimester abortion costs $451, and this does not include transportation or overnight accommodation expenses associated with Texas’s (and other states’) required waiting periods between an initial consultation and an abortion. The Lilith Fund, an abortion fund that serves women across Texas who need financial assistance to obtain an abortion, reported that in 2015, 91 percent of their clients were already mothers and 86 percent were women of color.

In practice, all of this means that women without $500+ to spare are denied abortion access, and women of color, mothers and poor women are disproportionately impacted by this economic bar to access. For these women, forced birth because of inadequate finances renders “choice” meaningless.

Recommendation: Repeal the Hyde Amendment and pass the EACH Woman Act, which would override all insurance bans on abortion care.

Lack of family leave

The Family and Medical Leave Act of 1993 (FMLA) provides American workers limited job protection when they need to take time off to care for a new baby or care for one’s health or the health of a family member. According to the Bureau of Labor, a higher percentage of women employees are FMLA leave-takers than men, meaning that this policy predominantly affects women. While the policy is intended to promote gender equality in the workplace, in reality, it is largely a symbolic act, affording minimal protection for working women, and men. In addition, it has actually slowed the progress on the family leave front. In particular, low-income women and women of color – particularly Black women and their babies – are disproportionately excluded from the policy’s benefits.

As the policy stands, not all women have the “choice” of taking FMLA leave. Currently, 40 percent of the U.S. workforce is not covered by the FMLA because their workplace does not have 50 or more employees, because they were recently hired (and as such, have not completed the 12 months and 1,250 hours of employment to be eligible for the FMLA), or because their sector of work does not qualify for FMLA. In addition, FMLA guarantees unpaid leave up to 12 weeks, unlike in most countries in the world, where paid leave is the norm. The impact of unpaid leave on working poor families leads to forced debt to compensate for lost wages, forced early return to the workplace and/or not taking leave at all. In turn, these “choices” increase stress and impair effective bonding between the new mom and child, seriously undermining maternal and infant health.

Recommendation: Build a more comprehensive Family and Medical Leave Act which includes, at minimum:

  1. Paid leave through an insurance program for workers funded by small employee and employer contributions;
  2. Paid leave to include at least 20 weeks;
  3. Flexible scheduling such that all leave is not required to be contiguous, but within a year of birth of a new child.

Lack of access to safe and affordable child care

Roughly 40 percent of American children are from low-income families, meaning 40 percent of American children live in homes that make roughly $45,000 or less for a family of four. According to the Center for American Progress, “the annual cost of child care for an infant in a child care center is higher than a year’s tuition at the average four-year public college in most states,” averaging $138 a week per child in 2010. Accordingly, low-income families must dedicate a higher portion of their income to child care: families making less than $1500 per month in 2010 spent over half (52.7 percent) of their income on child care, compared to 8.6 percent paid by families making more than $4,500 per month. All of this makes child care virtually unaffordable for many low-income families.

The lack of high-quality and affordable child care leads to crucial development gaps for children between the period of birth to three years and negatively impacts parents’ educational opportunities. According to the Institute for Women’s Policy Research, there is a direct relationship between the lack of policies that enable low-income parents to succeed in college (including affordable child care options) and their likelihood of graduation from college. The lack in “choice” of high-quality and affordable child care also leads to higher infant mortality rates and negatively impacts the financial stability of affected families. In sum, the livelihood of future generations is at stake.

Recommendation: Implement high-quality child care tax credit.

Insufficient wages to support a healthy family.

Women comprise a disproportionate share of the minimum wage-working population, and 28 percent of children in the U.S. have a parent who would benefit from a minimum wage increase. Increased minimum wage not only improves a family’s economic outlook, but recent research has also linked increased minimum wage to improved infant health outcomes. A study published by the National Bureau of Economic Research suggested that increasing the minimum wage also increases infant birth weight for babies born to mothers with minimal education, with a $1 wage increase reducing the rate of low birth rate by 2 percent. Birth weight has been linked not only to infant and child health, but also to later financial and educational outcomes.

A meaningful choice to give birth to and raise a child must also include the opportunity to support a healthy child in a stable environment. A living wage would not only provide greater financial stability to families, but would also positively impact birth, health and economic outcomes for years down the road. An increased minimum wage is an investment in healthy babies and families.

Recommendation: Raise the minimum wage to a living wage for families.


Reproductive choice must be understood as a far broader concept than merely access to abortion. The recent Supreme Court decision should be celebrated, but it should also be understood within its limited context. It is time to enact policies that allow women not only to access reproductive healthcare for themselves (including abortion, birth control and prenatal care), but also the opportunity to raise healthy families in safe and secure environments. We need comprehensive policies that support reproductive choice and healthy families for all people.

*Woog is a postdoctoral fellow at the Institute for Urban Policy Research and Analysis, and Vohra-Gupta is the associate director at IUPRA.


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