Defenders of the rights of unborn humans are often accused of a double standard that calls into question their commitment to the lives of all human beings. Opponents will point to the willingness of pro-lifers to rescue a five-year-old from a burning building, rather than liberate a crate of embryos. Similarly, the problem of early embryo loss is held up as indisputable proof that pro-lifers, who do not treat this as a health emergency of overriding priority, do not really accept that these lost embryos are truly human persons with full moral worth.

In many of these cases there are good reasons for the apparent asymmetries between our treatment of the born and the unborn, reasons which do not vitiate in the slightest our claim that as regards killing, there should be no asymmetry: it is equally wrong deliberately to kill an unborn human being and a human being at any other stage of development.

But even the asymmetries have limits, and one is prominently on display, I shall argue, in the recently passed Patient Protection and Affordable Care Act (PPACA). As has been widely noted, one difference between the Senate version of health-care legislation (which was passed) and the House version, is that the latter hewed more closely to the Hyde Amendment’s restriction against any federal dollars being used, not only to pay for any abortions (except in cases of danger to the mother’s life, rape, or incest), but also against any funding of a plan that covers abortion. PPACA does fund such plans, through an elaborate mechanism designed to screen federal dollars from the actual financing of abortions.

Under PPACA, each state must have a health plan that does not provide abortion coverage; so far, so good, and many states are in the process of passing legislation ensuring that they will have no plans that do. But states are not forbidden from providing abortion-covering plans, and, insofar as they do, they must adopt the following “segregation of funds” mechanism for preventing federal funding of abortion procedures: states must take in two premium payments per pay period from each enrollee in an abortion-providing plan, one payment of which will go exclusively to abortion coverage. No federal funds are to go into this abortion “pool,” and this mechanism is supposed to do justice to Hyde’s restrictions on federal funding of abortion.

Whether such a mechanism is genuinely in keeping with the letter or spirit of Hyde, and whether such a mechanism will, in fact, have the effect of increasing the abortion rate, are important issues which I will not address here. I wish rather to make an argument regarding the participation of pro-life citizens in the abortion-covering plans.

Currently, many pro-life citizens are, undoubtedly, in abortion-covering insurance plans. Such enrollees pay a premium that ensures their participation in the plan, knowing that the money collected from all premiums together pays for a set of benefits that includes abortion coverage. Pro-life enrollees do not will such coverage, but accept it as a side effect of their legitimate attempt to provide health insurance for themselves and their families, and such acceptance is perhaps reasonable if they have no other health insurance option (if, for example, their employer offers only plans with abortion coverage).

As Richard Doerflinger has pointed out in a recent essay in the National Catholic Bioethics Quarterly, the segregation-of-funds approach raises new difficulties for pro-life enrollees, for the money that the pro-life enrollee gives to the abortion pool is known to be destined solely for abortion coverage. And the bill seems to rule out the possibility of a conscientious opt-out of the abortion pool for pro-life individuals.

This creates the possibility that individuals and families for whom the non-abortion-providing plan offers benefits inferior to those of the abortion providing plan—benefits that might be of considerable importance relative to the individual or family’s specific situation—might therefore be led to adopt the abortion-providing plan. And in such a case, their money would be going directly to the abortion pool with no opt-out available.

Some commentators have described this situation as one in which pro-life enrollees are thereby “forced” to pay for abortions; others have described the conscience of such enrollees as necessarily “compromised.” Such descriptions, it seems to me, suggest that at the end of the day it could be morally acceptable, although objectively unjust to the enrollee, that he or she nevertheless enroll in the superior, but abortion-covering plan. For only if our hypothetical pro-life citizen enrolls is he or she forced, and is his or her conscience compromised, by the compulsory contribution to the abortion pool.

I shall take for granted that the existence of plans with mandatory abortion pools is indeed objectively unjust to pro-life citizens, as it is also to the unborn. But my question here is whether pro-life citizens can indeed, as a moral matter, enroll, even if with regret, distaste, anger, etc. Such citizens would never pay for an abortion of their own; is there an asymmetry here, such that their payment into the abortion pool is nevertheless morally permissible?

Suppose that PPACA required, not an abortion pool, but an infanticide pool, or an unwanted adolescent homicide pool, or an unwanted spouse homicide pool. That is, suppose that the pool existed to make possible the killings of born human beings of any age. Payment into the pool was, as in the current PPACA, a necessary condition for a particularly beneficial type of coverage; thus there was strong motivation for paying in, and some, perhaps serious, sacrifice to be expected from not paying in. But, as in current PPACA, it was also possible not to enter the pool: other packages were available that did not involve the homicide pools.

It is abundantly clear that no such pool would be tolerated, regardless of the subtleties of an argument that paying into the pool would, or would not, involve complicity in the contemplated homicides, or even if it were possible or even inevitable that the homicides might not, in fact, be performed. We would not accept the stated possibility or desirability that others or ourselves could be victims of such a pool as the possible cost of making even these significant benefits available. The very idea of such pools is offensive and unacceptable, even if the pool never led to a single actual homicide.

But this means that in the case of current health care legislation, pro-lifers are contemplating paying into a pool with effects on the unborn that we would never find tolerable where born human beings such as ourselves or our loved ones are concerned. (This would be true even if no abortions resulted from the pool.) And this is a failure of the Golden Rule, to do unto others as you would be done by. To pay into the abortion pool would thus be unfair, and hence unjust, to the unborn.

Thus, while there is a clear danger that pro-lifers will not have available to them health-care plans that cover all their most important needs (an injustice to pro-lifers), there should be no danger that pro-lifers will be forced to pay into the abortion pool, or forced to allow their dollars to be used for abortions. Pro-life citizens will continue to work for rectification of PPACA (for example, by supporting HR 5111, which attempts to correct many of the current legislation’s inadequacies), but they must not, pending such rectification, adopt any plan with PPACA’s segregated funding for abortion, lest they truly adopt a double standard regarding the unborn.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His latest book, co-authored with Robert P. George, is Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on the editorial board of Public Discourse.

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