George J. Annas, J.D., M.P.H.

President Barack Obama has made it clear that he does not want abortion politics to sabotage health care reform. In his September 10 speech about health care to a joint session of Congress, he said, “Under our plan, no federal dollars will be used to fund abortions.” Nonetheless, the centrality of abortion in U.S. politics makes it likely that abortion funding will play a major role in determining whether there is any health care reform law at all. The current abortion controversy concerns the Stupak amendment, whose presence or absence from the final bill may determine the votes of enough members of Congress to determine the outcome. This makes it critical to understand both this amendment and the current state of the law on federal funding for abortion.

The Stupak amendment provides that “No funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of rape or incest” (italics added).

The House passed this amendment by a vote of 240 to 194, with 64 Democrats voting in favor (the House health care bill itself passed 220 to 215). Many have blamed the Catholic bishops who lobbied fervently for passage of the Stupak amendment. More influential, however, has been the previously secret fundamentalist Christian political leadership group known variously as the Family or the Fellowship, which includes among its members both of the amendment’s main sponsors, Bart Stupak (D-MI) and Joe Pitts (R-PA).¹

The Stupak amendment has been defended as merely continuing the practice created by the Hyde amendment. That amendment, named after the late Congressman Henry Hyde (R-IL), which has been attached to every Health and Human Services Appropriations Act passed since 1976 (and has been added to appropriations legislation for the Defense Department, the Indian Health Service, and federal employees’ health insurance plans) prohibits the use of federal funding for “any abortion” or for any “health benefits coverage that includes abortion,” unless the pregnancy is the result of “rape or incest” or “would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” Under the Hyde amendment, states may use their own funds to finance abortion services through their Medicaid programs, and 17 states currently do so.

The U.S. Supreme Court has ruled on the government funding question twice. The first case, in 1977, involved a Connecticut regulation that limited state Medicaid funding to “medically necessary” abortions, thus excluding those not necessary to preserve a woman’s life or health. The Court ruled that women have a constitutional right to choose to have an abortion, but the state has no obligation to pay for the exercise of this right and may constitutionally encourage women to continue their pregnancies to term by providing funding for childbirth and not abortion. The state may not constitutionally create obstacles to abortion, but it has no obligation to remove obstacles, such as poverty, that are not of its own making.²

Three years after the Connecticut decision, the Court upheld the Hyde amendment, which prohibited federal funding for medically necessary abortions.³ Under this ruling, even low-income women who would have devastating health outcomes if they continued a pregnancy could not have an abortion paid for by Medicaid. In both cases, the Court ruled that the government could make “a value judgment favoring childbirth over abortion and [implement] that judgment by the allocation of public funds.” There is no constitutional requirement for the federal government to fund any abortion. Federal funding is a political question to be addressed by Congress.

The current version of the U.S. Senate bill on health care reform, which Majority Leader Harry Reid (D-NV) created by blending bills from two committees, does not contain the Stupak amendment but specifically excludes federal funding for abortions as prohibited by any federal law (including the Hyde amendment) that was in effect “6 months before the beginning of the plan year involved.” States must also ensure that “no federal funds pay or defray the cost” of abortion services in new health plans that cover abortion. Moreover, states are required to offer at least two plans in the proposed health insurance exchanges (where most people who currently lack coverage will purchase insurance): one that covers abortion services and one that does not. Nonfederal funds for abortion coverage in any plan must be segregated, and payment must be made separately, in an amount estimated by the secretary of health and human services, to cover this benefit.

The primary promoters of the Stupak amendment in the Senate, Orrin Hatch (R-UT) and Sam Brownback (R-KS), who is also a member of the Family,¹ would not vote for a health care reform bill even if it outlawed federal payments for all abortions because both men object to more government involvement in health care. Since 51 votes would be required for the Senate to adopt the amendment, it seems unlikely that it will be added to the Senate bill.

Three major questions have been raised about the House and Senate approaches: Do they fulfill Obama’s no-federal-funding promise? Do they follow the Hyde amendment “tradition”? And do they represent good health insurance policy?

As for the first question, the Senate version fulfills the President’s promise by requiring abortion funding to come from sources other than federal tax dollars. This aspect of the provision has been denigrated as a “bookkeeping trick,” but all payments involve bookkeeping. Even federal employees who pay for abortions with their government salaries are using funds that came from federal tax dollars. As for the second question, the Stupak amendment goes far beyond the Hyde amendment by prohibiting the use of federal tax dollars not only for abortion itself but also for any health plan available on the proposed exchanges that covers abortion. The goal is to limit access to abortion, even when no federal funds are being used for it.

The third question relates to public health policy. The Hyde amendment institutionalizes the moral view of some members of Congress that even medically necessary abortions should not be considered health care. This view, for example, led Congress to criminalize an abortion procedure without an exception for the health of the pregnant woman.⁴ These are the types of federal government intrusions into health care that opponents of public insurance plans usually decry.

President Obama is nonetheless on solid political ground in leaving for another day the toxic issue of federal funding for abortions. Should the current Senate bill get to conference committee, the Senate conferees should insist that their abortion-funding–neutral language be adopted in the final bill. The House conferees are unlikely to object. The Stupak amendment cannot be fairly termed a health care bill because it further restricts funding, and voting against it seems to me a reasonable response from senators and representatives who support social justice and equality between the sexes.

Financial and other disclosures provided by the author are available with the full text of this article at NEJM.org.

Source Information

From the Boston University School of Public Health, Boston.

This article (10.1056/NEJMp0911513) was published on December 2, 2009, at NEJM.org.

References

1. Sharlet J. The Family: the secret fundamentalism at the heart of American power. New York: HarperCollins, 2008.
   
2. Maher v Roe, 432 U.S. 464 (1977).
   
3. Harris v. McRae, 448 U.S. 297 (1980).
   
4. Annas GJ. The Supreme Court and abortion rights. N Engl J Med 2007;356:2201-2207. [Free Full Text]