Federal funding of abortion became an issue soon after the U.S. Supreme Court, in its 1973 ruling in Roe v. Wade, invalidated the laws protecting unborn children from abortion in all 50 states. The federal Medicaid statutes had been enacted years before that ruling, and the statutes made no reference to abortion, which was not surprising, since criminal laws generally prohibited the practice. Yet by 1976, the federal Medicaid program was paying for about 300,000 elective abortions annually, and the number was increasing rapidly. If a woman or girl was Medicaid-eligible and wanted an abortion, then abortion was deemed to be “medically necessary” and federally reimbursable. It should be emphasized that “medically necessary” is, in this context, a term of art—it has repeatedly been recognized by knowledgeable analysts on both sides of the abortion controversy as conveying nothing other than that the woman was pregnant and sought an abortion from a licensed practitioner.
That is why it was necessary for Congressman Henry J. Hyde (R-IL) to offer, beginning in 1976, his limitation amendment to the annual Health and Human Services appropriations bill, to prohibit the use of funds that flow through that annual appropriations bill from being used for abortions.
Abortion and the Obama Health Care Law
During last year’s healthcare debate, the National Right to Life Committee (NRLC), the nationwide federation of right-to-life organizations, did not take a position on many of the structural issues that dominated much of the debate, such as whether or not there should be a “public option” insurance plan. But NRLC, joined by other mainstream pro-life organizations, strongly advocated that all programs created or modified by the healthcare bill should be governed by explicit, permanent language to apply the principles of the Hyde Amendment to the new programs. The principles of the Hyde Amendment are twofold: no federal funding of abortion and no federal subsidies for health plans that include coverage of abortion, with very limited exceptions.
I wish here to underscore what some people have tried hard to obscure: the language of the Hyde Amendment, as it has long been applied to appropriations within the Health and Human Services appropriations purview, prohibits not only direct federal funding of abortion procedures, but also entails that “none of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.... The term ‘health benefits coverage’ means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.” [italics added for emphasis]
Phraseology similar to the Hyde Amendment language is found in the abortion-related provisions that govern other federal health insurance programs—for example, the laws that currently govern the State Children's Health Insurance Program (SCHIP) and the Federal Employees Health Benefits (FEHB) Program.
Whenever a federal program pays for abortion or subsidizes health plans that cover abortion, that constitutes federal funding of abortion—no matter what deceptive labels or gimmicks might be employed to conceal the reality. The claim made by advocates of the "Patient Protection and Affordable Care Act" (PPACA, the enacted "Obamacare" law) and its precursor bills during the 111th Congress (2009-2010)—the claim that a federal agency can send checks to abortionists to pay for abortions, but without employing public funds—amounts to a political hoax. The federal government collects monies through various mechanisms, but once collected, they become public funds—federal funds. When government agencies use such funds to pay for abortions, that is federal funding of abortion, plain and simple.
Here are just some of the abortion-expanding elements of the enacted PPACA: authorization for abortion coverage under the Pre-Existing Condition Insurance Plan program, federal subsidies for private health plans that cover elective abortions, authorization for abortion funding through Community Health Centers, and authorization for inclusion of abortion coverage in health plans administered by the federal Office of Personnel Management. This is not an exhaustive list.
There is nothing in the PPACA that remotely resembles the Stupak-Pitts Amendment. There are certain apparent abortion limitations, but for the most part they are cosmetic. Instead of bill-wide language that would have permanently applied the Hyde Amendment principles to the new programs, we find a hodgepodge of artful exercises in misdirection, bookkeeping gimmicks, loopholes, ultra-narrow provisions that were designed to be ineffective, and/or provisions that are rigged to expire.
The Truth Comes Out
The first major component of the PPACA to be implemented, the Pre-Existing Condition Insurance Plan (PCIP) program, provided a graphic demonstration of the problem: the Department of Health and Human Services approved plans from multiple states that would have covered elective abortions. NRLC documented this and blew the whistle in July, 2010, which produced a public outcry, after which DHHS announced a discretionary decision that the PCIP plans would not cover elective abortions. Commentators on all sides of the issue were in agreement about one thing: coverage of elective abortions within this new, 100% federally funded program was not impeded by any provision of the PPACA. The program was not even in President Obama's Executive Order 13535, which purported to restrict federal funding of abortion but which was in reality a political document nearly devoid of substantive content (and accurately dismissed by the president of Planned Parenthood as "a symbolic gesture").
On the same day that DHHS issued its decision to exclude abortion from the new PCIP program—July 29, 2010—the head of the White House Office of Health Reform, Nancy‑Ann DeParle, issued a statement on the White House blog explaining that the discretionary decision to exclude abortion from the PCIP “is not a precedent for other programs or policies [under the PPACA] given the unique, temporary nature of the program.” Laura Murphy, director of the Washington Legislative Office of the American Civil Liberties Union, said, “The White House has decided to voluntarily impose the ban for all women in the newly-created high risk insurance pools.... What is disappointing is that there is nothing in the law that requires the Obama Administration to impose this broad and highly restrictive abortion ban.”
According to a Quinnipiac University poll from January 2010, 67% of Americans are opposed to allowing public funds to pay for abortion through health care. This included 68% of women (and 65% of men), and 47% of Democrats. A 2010 Zogby/O’Leary poll found that 76% of Americans said that federal funds should never pay for abortion or should pay only to save the life of the mother. A September 2009 International Communications Research poll asked, “If the choice were up to you, would you want your own insurance policy to include abortion,” to which 68% of respondents answered “no” and only 24% answered “yes.”
The Real Path to Abortion Reduction
During his quest for the Democratic presidential nomination, then-Senator Obama and his campaign went to great lengths to emphasize his unblemished record of opposition to limitations on abortion, including opposition to parental notification laws and bans on partial-birth abortion, as well as his support for repeal of the Hyde Amendment. He even advocated elimination of the very modest federal support available for crisis pregnancy centers. After securing the nomination, however, he adopted a rhetorical line of advocating government policies to reduce the number of abortions. For example, at the August 17, 2008 Saddleback Forum, Senator Obama said, “So, for me, the goal right now should be—and this is where I think we can find common ground... how do we reduce the number of abortions?”
So let us talk about “abortion reduction.” There is abundant empirical evidence that where government funding for abortion is not available under Medicaid or the state equivalent program, at least one-fourth of the Medicaid-eligible women carry their babies to term, who would otherwise procure federally funded abortions. Some pro-abortion advocacy groups have claimed that the abortion-reduction effect is substantially greater—one-in-three, or even 50 percent. For example, a 2010 NARAL factsheet contains this statement:
A study by the Guttmacher Institute shows that Medicaid‑eligible women in states that exclude abortion coverage have abortion rates of about half of those of women in states that fund abortion care. This suggests that the Hyde amendment forces about half the women who would otherwise choose abortion to carry unintended pregnancies to term and bear children against their wishes.
But even if we stick with a conservative 25 percent abortion-reduction figure, it means that well over one million Americans are walking around alive today because of the Hyde Amendment. The Hyde Amendment is the greatest domestic "abortion reduction" program ever enacted by Congress.
Many critics of the Hyde Amendment argue, quite explicitly, that these children should not have been born. Indeed, over the years, some critics of the Hyde Amendment policy have quite explicitly argued for federal funding of abortion as a cost-saving expedient. Whatever their motivations, if these groups and their congressional allies had succeeded in their efforts to block the Hyde Amendment, these million-plus children would not have been born. Their birth was, according to a 2007 Guttmacher Institute monograph, a “tragic result” of the Hyde Amendment:
Perhaps the most tragic result of the funding restrictions, however, is that a significant number of women who would have had an abortion had it been paid for by Medicaid instead end up continuing their pregnancy.
Two bills currently under consideration in Congress address the issue of federal funding of abortion: the Protect Life Act (H.R. 358) and the No Taxpayer Funding for Abortion Act (H.R. 3). The Protect Life Act would repeal and repair the abortion-expanding components of the Obamacare law. The No Taxpayer Funding for Abortion Act would enact a permanent, government-wide prohibition on funding of abortion and health plans that cover abortion, in all federal programs. The Protect Life Act would also enhance the legal protections for health care providers who do not wish to participate in providing abortions.
Anyone who thinks that the million-plus Americans that walk among us today because of the Hyde Amendment constitute a “tragic result,” should oppose these two bills. Those who think otherwise should support them. If these bills are enacted, the lifesaving effects already achieved through the Hyde Amendment will be multiplied—and that is a goal that our organization regards as the furthest thing from a tragedy.
Douglas Johnson is the Federal Legislative Director of the National Right to Life Committee. This article is adapted from testimony presented by Mr. Johnson at a hearing on the Protect Life Act conducted by the Health Subcommittee of the Committee on Energy and Commerce, U.S. House of Representatives, on February 9, 2011. Mr. Johnson's full written testimony, which includes 30 end notes quoting and linking primary documents, is posted here. A 24-page sworn affidavit submitted by Mr. Johnson to the subcommittee, detailing the abortion-expanding components of the "Patient Protection and Affordable Care Act," is posted here.