Last summer President Barack Obama told Katie Couric on the CBS Evening News that there is a “tradition” in Washington “of not financing abortions as part of government funded health care.” This benchmark moment in the history of abortion rights in the United States was more than three decades in the making.
The ostensibly pro-choice president was referring to the principles of the Hyde Amendment passed three years after Roe vs. Wade placed the protection of the Constitution behind a woman’s right to choose. Named for the conservative Catholic congressman, Rep. Henry Hyde (R-IL), it proscribed federal funds from being used to provide abortions. The main effect was to remove abortion from the list of medical services that could be paid for through the federal Medicaid program. Many reproductive rights supporters saw it as an affront to poor women who would, in effect, be denied access to abortion care.
But a creeping Washington consensus emerged during the current debate on health care reform that took many by surprise: The Hyde Amendment is now seen as a moderate, “abortion-neutral” position that neither advances nor restricts abortion. The gradual adoption of the principles of the most significant anti-abortion legislation in history as a moderate compromise constitutes a stunning shift in American political and religious life, and raises fundamental questions about whether society views abortion care as part of health care and about its commitment to the right to choose an abortion, as it points to a significant double standard for poor women.
One could call Hyde the first volley in the strategy of “abortion reduction” that has guided the broad mainstream of the anti-abortion movement at least since the mid-1990s.
Prior to Hyde, about a third of all abortions performed in the United States were for poor women on Medicaid. “No other medical procedure was singled out for exclusion,” the National Network of Abortion Funds (NNAF) reported in 2005. “Today, 33 states have followed suit, prohibiting state Medicaid funding [for abortion] as well.” All but one of these states (South Dakota) follows the Hyde exceptions of rape, incest, or life endangerment. The report details the disproportionate burdens placed on disadvantaged women, and observes that “women of color disproportionately depend on such coverage, making abortion funding a matter of racial justice as well as economic justice and women’s rights.”
But the federal restrictions did not stop there. Over the years, Congress has also legislated against access to abortion services for women in the military and Peace Corps, disabled women, residents of the District of Columbia, federal prisoners, and women covered by the Indian Health Service. Indeed, it could be argued that except for the legal right to an abortion, federal policies constitute the greatest abortion reduction program of all.
“Prior to 1996,” states the NNAF report, “legal immigrants and US citizens were equally eligible for Medicaid.” But the 1996 welfare reform law signed by President Clinton required a five-year waiting period before most new legal immigrants could even apply. Less than half of the states fill in the five-year gap with their own funds, and nine states permanently deny Medicaid coverage to non-citizen residents.
Defenders of abortion rights might legitimately worry that “conscience clauses” could also be said to have a venerable history. The original conscience clause legislation passed in 1973 in the wake of Roe states, according to the Congressional Research Service, that public officials may not require individuals or entities who receive certain public funds to perform abortion or sterilization procedures, or to make facilities or personnel available for the performance of such procedures, if such performance “would be contrary to [the individual or entity’s] religious beliefs or moral convictions.”
This provision has allowed even major medical facilities (such as Roman Catholic hospitals) to refuse to deal with abortions without jeopardizing their ability to receive public grants and contracts or affect their tax-exempt status. A new rule promulgated late in the Bush administration expanded and particularized the exemptions, stating that health workers may even refuse to provide information or advice regarding abortion. The Obama administration has rescinded the Bush rule, but says it plans to leave some kind “reasonable” exemptions in place.
Historic pro-choice religious communities see Hyde differently than the current Inside the Beltway consensus. For example, on the occasion of the 30th anniversary of Hyde, the Washington, DC-based Religious Coalition for Reproductive Choice, (a group of 40 religious organizations, including major protestant denominations and most of the major organizations of Judaism) issued a “call to conscience to end this discriminatory and punitive measure”:
By singling out abortion for exclusion, government has created a two-tiered system of health care in which poor and low-income women do not have the same ability to make personal decisions about abortion as those who can afford services or have private insurance. We believe this is fundamentally unfair. For women, justice must include the ability to make decisions about bringing a child into the world, without coercion and with the full support of family and society.
In November, House Democrats passed a health care reform bill that would not only extend the principles of the Hyde Amendment to proposed overhaul of the health care system, but further block federal subsidies for private health insurance that covers abortion care. This was achieved via an amendment co-sponsored by Rep. Bart Stupak (D-MI) and Rep. Joe Pitts, (R-PA). At this writing, the version of the Stupak-Pitts amendment submitted by Sen. Ben Nelson (D-NB) in the Senate has been tabled, and it is possible that the Stupak-Pitts amendment may get stripped from the final bill in a conference committee to reconcile the House and Senate versions of the bill. But Marlene Gerber Fried, Director of the Civil Liberties and Public Policy Program at Hampshire College, in Amherst, MA, nevertheless considers such an outcome a hollow victory, many years in the making. She observes that “Beating Stupak will mean that millions of women still won’t be covered. It just won’t be millions more.”
“We are still living with the legacy of an abortion politic,” she said in a telephone interview last week, “that did not put the interests of poor women up front. The idea that a Constitutional right requires access to that right is,” she concluded, “just not part of liberal thinking.” This has happened in part because the voices of pro-choice religious communities and advocates for the abortion rights of the poor have been marginalized in Washington and in the media. So opposition to the idea that Hyde is somehow “abortion-neutral” went largely unchallenged.
Nevertheless, there was a flaw in the thinking of the president’s coalition. Just because they thought their proposal was abortion-neutral did not mean that everyone else would also see it that way. It turned out that anti-abortion legislators in both parties were not going to go along with public funds (no matter how small the amounts relative to the enormous health care bill) going to private insurers who provide abortion coverage. This issue loomed so large that a spokesman for the US Catholic Conference of Bishops (USCCB) told the New York Times, “The concerns are kind of intractable.”
Pro-choice leaders point out that without the subsidies, private insurers, which already cover abortions, might no longer do so. Rev. Carlton Veazey, President of RCRC came out swinging in a recent “action alert” to supporters. “The House-passed Stupak-Pitts amendment,” he declared, “is disrespectful of women and an affront to our nation’s promise of freedom of religion and separation of church and state. The House of Representatives bowed to the pressure of the USCCB and agreed to impose the theology of this one religious tradition on all of us.”
As they sought to find “common ground” on abortion, the president and others were taken by surprise that Hyde did not mean sufficient abortion neutrality to the USCCB and anti-abortion Democrats, many of whom have signaled their willingness to sacrifice health care reform over the possibility that any public funds might touch on abortion. It is remarkable that the administration and pro-choice and liberal interest groups apparently did not see it coming. As a result pro-choice members of Congress and pro-choice organizations are fighting merely to preserve the principles of Hyde in the health care bill in opposition to Nelson and Stupak-Pitts. And what do they call it? “Preserving the status quo.”