In an attempt to keep health reform from being torpedoed by the ever-contentious topic of abortion, advocates and opponents of abortion rights were expected to agree that legislation would preserve the “status quo” on abortion law and not be used to advance or restrict abortion rights. Unfortunately, fights erupted over different definitions of the status quo and how to apply it to a reformed health insurance system, and the health care debate quickly became embroiled in abortion politics anyway.
Ultimately, both the House of Representatives and the Senate adopted measures that shift the status quo away from abortion access. The House passed a provision known as the Stupak Amendment, named for Rep. Bart Stupak, D-Mich., which would virtually eliminate insurance coverage for abortion services from the new insurance market by prohibiting people from purchasing such coverage if they receive federal assistance for their premiums. The Senate went with slightly more moderate but still restrictive language, offered by Sen. Ben Nelson, D-Neb., that would allow people receiving subsidies to purchase abortion-inclusive coverage only if they pay with two separate private premiums every month—one for abortion-related coverage and one for all other services.
Yet the worst effect of this debate may be the reinforcement of a two-tiered system where only rich women are able to exercise their constitutionally protected rights. For lost in the debate over the status quo is an acknowledgement that the current law on abortion funding is immoral and unjust. Moreover, the status quo has been neither static nor monolithic.
Because of legislation known as the Hyde Amendment, which restricts Medicaid funding for abortion, poor and low-income women are put through tremendous hardship if they seek to end a pregnancy. But although the Hyde Amendment, named for its sponsor the late Rep. Henry Hyde, R-Ill., has been on the books in one form or another for more than 30 years, it is not permanent, codified law. Rather, it has been reauthorized every year by Congress in the appropriations process. As such, its parameters have changed over time, representing various compromises between those who seek full abortion access and those who seek to outlaw abortion completely.
The earliest version of the Hyde Amendment was its most harsh, imposing a total ban on Medicaid funding of abortion in 1976. An exception for life endangerment was passed shortly thereafter, and over time different exceptions have been added and dropped. In 1978, exceptions included “promptly reported” rape and incest and “severe and long-lasting physical health damage” certified by two physicians. This extremely narrow health exception was deleted the next year, and the rape and incest provisions were eliminated in 1981, during President Ronald Reagan’s first year in office.
Hyde himself reinserted the rape and incest exceptions in 1993, after President Bill Clinton’s budget threatened to remove the amendment entirely. And in 1997 the life exception was narrowed to cases “where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” This brings us to where we are today, with exceptions for life, rape and incest.
In an early court challenge, the Hyde Amendment was initially found to be unconstitutional. But ultimately the Supreme Court upheld it in Harris v. McRae, ruling that federal and state governments were under no obligation to pay for abortion care, noting that “the Hyde Amendment leaves an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.”
Since then, similar restrictions have proliferated to limit federal funding of abortion for military personnel and their dependents, teenagers in the Children’s Health Insurance Program, federal employees and their dependents, Native Americans, members of the Peace Corps, women in prison and women served by international organizations that receive U.S. assistance.
The Hyde Amendment also has had ripple effects on state laws. Prior to Hyde, only 13 states had funding bans; today, only 17 states provide funding for circumstances beyond the federal exceptions. A combination of anti-abortion, anti-tax, and anti-poor sentiment make these bans extremely difficult to fight.
A common misperception about these limitations is that abortion is not that expensive, but that view reflects a privileged perspective. While the cost of an abortion has remained remarkably constant over time, currently averaging just over $400 in the first trimester, for a woman on Medicaid who is already struggling to make ends meet, she may not have $10 in her pocket let alone $400 in the bank. It has been documented time and again that women seeking abortion funding must forego basic needs, such as rent, heat, and food, for themselves and their children.
Moreover, as women must delay their appointments in an attempt to scrape together the needed cash, the cost of abortion increases as the pregnancy progresses, ultimately costing potentially thousands of dollars. Many women are never able to raise the funds in time. Indeed, it is estimated that one-fourth to one-third of women who seek an abortion must carry their pregnancy to term because of the unaffordable cost. While moral objections to abortion are usually used to justify funding bans, making a woman carry a pregnancy to term against her will is also morally troubling.
Although clinics discount their services when they can and a network of local funds across the country raises money to help these women, private charity will never be able to make up for the need that exists and ought to be met by the government. Last year, the National Network of Abortion Funds assisted 21,500 women. In the years between the Supreme Court’s 1973 Roe v. Wade decision and the Hyde Amendment, Medicaid provided abortion coverage for roughly 300,000 women per year.
But for Rep. Stupak, the damage done by the Hyde Amendment and the further rollbacks adopted by the Senate are not sufficient. The Senate bill must now be passed by the House in order to complete the health reform process. Yet Mr. Stupak and his allies have threatened to deny health insurance expansion to millions of Americans all because the legislation does not go far enough in restricting abortion rights.
Even without getting his amendment into the final bill, however, he has made large gains in achieving his agenda. Health reform will bring many benefits to our country, but for abortion rights, it is a major setback. Abortion may still be legal, but it is increasingly becoming out of reach. The proposed legislation will impose the Hyde principle on the private insurance industry, making it harder for yet another group of women to obtain needed abortion care.
Jessica Arons is the director of the Women’s Health & Rights Program at the Center for American Progress and a board member of the DC Abortion Fund (DCAF), which raises money to assist women with the cost of an abortion.