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Abortion and Health Care Reform

by Professor Will Huhn on July 22, 2009

in Constitutional Law,Wilson Huhn

     Ben Smith of Politico authored an article today entitled "Abortion Roils Already Tense Health Debate."  At present, the law prohibits government-sponsored health insurance plans from covering the costs of abortions, but private insurance plans are permitted to and often do offer this coverage.  What will happen – what should happen – if the government undertakes the task of setting requirements for private insurance coverage?  And what does the Constitution have to say about the subject?

     Here are links to a statement from NARAL Pro-Choice America and a letter from Americans United for Life Action on the subject of what the health care reform legislation should provide with respect to abortion coverage.

     In 2004 the American Civil Liberties Union posted this statement in support of federal funding for abortions, and it gave this description of the controversy.  In 1976, three years after the Supreme Court's decision in Roe v. Wade, Congress adopted the Hyde Amendment, a provision attached to appropriations legislation prohibiting the use of Medicaid funds to pay for abortions.  Similar language has been adopted by each subsequent Congress.  As of 2004, federal law allowed for abortion coverage under Medicaid or for federal employees only in cases of rape, incest, or where the woman's life is in danger from physical disorder, illness, or injury.  The A.C.L.U. also stated that seventeen states fund abortion coverage for impoverished women.

     The Supreme Court upheld the Hyde Amendment by a vote of 5-4 in 1980 in the case of Harris v. McRae .  The majority of the Court acknowledged that a woman has a constitutional right to terminate her pregnancy in the early stages, but that she does not have a constitutional right to have the government pay for it.  The Court relied upon a rule that it had announced in an earlier case, Maher v. Roe (1977), stating that the right that the Court recognized in Roe v. Wade was not "the right to have an abortion," but rather the right to be free of any "undue burdens" or "substantial obstacles" that the government might place in her path that would deprive her of this choice.  Here is an extended quote from the majority opinion in Harris making this point:

     But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade.

     In my opinion, the decision in Harris v. McRae makes moral and political sense.  People who feel strongly that abortion is wrong – that it is the killing of a human being – should not be forced to subsidize the procedure through their tax dollars.  However, if the government were to prohibit even private health insurers from paying for abortions, that would, in my opinion, constitute an "undue burden" or "substantial obstacle" that the government would be placing in the path of individuals who choose to have one. 

      A principal component of health care financing reform will be that private health insurance will come under more government regulation – including regulations regarding what medical procedures are insured – and private health insurance may also be subsidized to some extent by the government.  One could argue that these subsidies turn private insurers into public actors, and that the "Hyde Amendment" should therefore be extended to private insurers.  On the other hand, most private health insurance is already heavily subsidized by the government in the sense that employers may deduct its cost as a business expense but it is not taxed as income to employees.

     It would seem that a sensible compromise would extend the same rule that we have at present – under the law, government programs would not cover the cost of abortions, while private insurers, even those whose premiums are subsidized to some extent by the government, should be permitted (but not required) to extend abortion coverage to their customers.

     What do you think?