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Committee Action on Health Care Reform and Abortion Funding

by Professor Will Huhn on July 31, 2009

in Wilson Huhn

     Today the House Energy and Commerce Committee, led by Rep. Henry Waxman, is likely to report the "America's Affordable Health Choices Act of 2009" bill to the floor of the House of Representatives.  Here are links to the bill and a summary of it.  Below the fold is a discussion of how the bill will treat medical insurance for abortion.

     Medical insurance is not a constitutional right, but there are many constitutional issues that arise out of medical issues, including the right to refuse lifesaving medical treatment and the right to terminate a pregnancy.  One of the most divisive questions that must be considered by Congress as it moves forward on reforming the nation's system of health insurance is the extent to which private health insurance will be available to cover abortion. 

     I have previously posted an entry describing how the Supreme Court has ruled that while a woman has a constitutional right to choose to terminate a pregnancy in its early stages, she does not have a constitutional right to have the government pay for it.  The standard that the Court developed was whether the government has placed a "substantial obstacle" or an "undue burden" in the path of a woman seeking to have an abortion, and it ruled that in the case of an indigent woman it was her poverty, not the government, that might prevent her from obtaining an abortion.  Accordingly, it is constitutional for government financed programs such as Medicaid to exclude coverage for abortions.

     A different question is presented when the government seeks to regulate the coverage provisions of private insurance companies.  Many private insurers do, at present, cover abortions; others do not.  If the government were, by law, to prohibit private insurance companies from paying for abortions, in my opinion the Supreme Court would find that the government was placing a "substantial obstacle" or an "undue burden" in the path of a woman seeking an abortion.

     The Republicans and the Democrats are not too far apart on this issue.  According to an AP report posted earlier this morning by Erica Werner, Democrats want the law to provide that at least one private insurance plan in each region of the country will cover abortions, while Republicans want the law to make no requirements whatsoever regarding insurance coverage for abortions, except in cases of pregnancy resulting from rape or incest. 

     Yesterday the Republican amendment on this question was defeated in the Committee by a vote of 29-30 (after a last-minute switch and a revote) and the Democratic plan was adopted 30-28.  This will no doubt continue to be a bone of contention as the Committee reports this bill to the floor and as Congress moves forward on health insurance reform.

     For the next two weeks I will be taking a break from day-to-day constitutional analysis of issues in the news.  Beginning Monday there will be a ten-part series, "America the Beautiful," discussing how our music, poetry, movies, and television shows express our fundamental values.  Please add your comments and suggestions – your favorite American songs, stories, and other works of art that reflect the constitutional principles we believe in.

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