NICOLE PORTNOV – On January 13, 2017, H.R. 7—the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017—was introduced in the U.S. House of Representatives, and by January 24, it had passed by a vote of 238 to 183. The bill adds to the U.S. Code the provisions known collectively as the Hyde Amendment. This is a massive policy change because since 1976, the ban on the use of public funding for abortion has been a fiscal provision expiring annually with the federal budget, rather than a permanent fixture in American law. H.R. 7 aims to change that, further depriving women—particularly vulnerable women—of access to abortion services.
The first iteration of the Hyde Amendment began as a ban on federal funding of abortions, a rider to the 1976 Medicaid appropriations bill. The original text made no exceptions to the ban, even to protect the life of the mother. Due to a constitutional challenge, the ban did not take effect until 1980, after the Supreme Court declared the principles behind public funding bans constitutional in a series of decisions including Beal v. Doe,[1] Maher v. Roe,[2] Poelker v. Doe,[3] and Harris v. McRae.[4] According to NPR, the Hyde Amendment has expanded to include a ban on federal funding of abortions for women in “worker health plans, women in federal prisons, women in the military, peace corps volunteers and international family planning programs that use non-U.S. funds to perform or advocate for abortion.” Today, there are only three exceptions to the ban: cases of rape, incest, or where the life of the mother is in danger. This means that even if the mother’s health is at risk and her doctor recommends that she have an abortion, it is still not covered by Medicaid or any other federal funding. The original rider, proposed by Henry Hyde, kept Medicaid from covering abortion because, as Hyde stated, though he hoped to prevent all women from having abortions, “the only vehicle [was] . . . the Medicaid bill.”
As a result, two things have held true. First, the Hyde Amendment has made abortion more difficult—sometimes impossible—for poor women to access. Second, over the years, federal funding for abortion has been addressed through annual budget appropriations bills, effectively hinging a constitutional right on the passage of, and the language in, said annual budget. Title I § 101 adds Chapter 4 to the U.S. Code, “Prohibiting Taxpayer Funded Abortions,” via language prohibiting “[all] funds authorized or appropriated by Federal law [from funding] any abortion [or any] health benefits coverage that includes coverage of abortion.”[5] The same section prohibits all federal employees, within the scope of their employment, and all federally owned or operated facilities from performing any abortion.[6] Further, “coverage shall not be purchased [by states] using matching funds required for a federally subsidized program, including a State’s or locality’s contribution of Medicaid matching funds.”[7] The proposed Chapter 4 includes the same three exceptions provided for by the Hyde Amendment: rape, incest, and any 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.”
Title II of the bill addresses the application of the ban on federal funding of abortions under the Affordable Care Act (ACA). In general, it disallows “refundable credit or cost-sharing reductions” under any health plan which provides coverage for abortion. One can purchase abortion coverage under a separate plan, but the law prohibits tax credits or reimbursements for the premiums under these plans. The law would also amend the Internal Revenue Code to prohibit small businesses from receiving any insurance expense credit for any health plan that includes coverage for abortions.[8]
In the past, litigants seeking publicly funded or subsidized abortions as a necessary facet of reproductive health services have asserted claims at the state and federal levels under the Equal Protection clauses of the Fourteenth and the Fifth Amendments, respectively. Unfortunately, the Supreme Court has consistently upheld public funding bans because the prevailing view is that low-income women are not a suspect class, but a subset of a suspect class. Essentially, because women who want an abortion still technically have access if they pay for it, the refusal to provide public funding for such services is not a violation of equal protection, and the denial of a federal entitlement is not an “undue burden.” The same is true for more recently enacted (though not new) private insurance bans on abortion at the state level; so long as women can still technically (if not actually) pay for the service out of pocket, private health insurance bans on abortion coverage are not unconstitutional.
Implications of a Permanent Ban
The implications of bans on the public funding of abortion are dire, particularly for the most vulnerable women. A report by the Center for American Progress states that though unintended pregnancies have decreased nationally, this data belies the divergent trends for poor women: “From 1994 to 2001, the rate of unintended pregnancies rose 29 percent for women living in poverty and 26 percent for women living between 100 and 200 percent of the federal poverty level. During the same period, the rate fell 20 percent for women at higher incomes.”[9]
Women with lower incomes are much more likely to rely on publicly funded (indeed, federally funded) health insurance programs, like Medicaid, for coverage. Women of color are also more likely to rely on some form of publicly funded health insurance. Of the 30 million African Americans with health insurance in 2009, some 17 million had publicly funded insurance.[10] Additionally, some 57 percent of the Native American population in the United States receives health coverage via the federally funded Indian Health Service (IHS).
All of this occurs in an institutional context that systematically discriminates against women of color. While Medicaid has expanded access to health insurance, its limited benefit packages and low reimbursement rates have had a disparate impact on women of color. In 2008, the Committee on the Elimination of Racial Discrimination (CERD) Working Group on Health and Environmental Health, submitted a shadow report to the U.N. Committee on the Elimination of Racial Discrimination. The CERD Working Group found that “Medicaid’s per-patient expenditures varied along racial and ethnic lines.”[11] Thus, overall, women of color and poor women are at a much higher risk of adverse reproductive health outcomes. They are more likely to experience birth control failures, have inadequate access to family planning and sex education programs and have less access to a trusted health care provider. This puts both groups at higher risk for unintended pregnancy, and thus they are more likely than the general population to need abortion services.[12]
Finally, legislation like H.R. 7 and the Hyde Amendment are largely ineffective at accomplishing anything beyond delaying access to abortion for lower-income women and women of color. They turn a relatively safe procedure into a more dangerous one by delaying access. Where the average woman will take approximately two weeks from when she decides to have an abortion to obtain her procedure, poor women experience significant delays, largely for financial reasons. According to the CERD report, “a woman living below 200 percent of the poverty line takes six more days and on average ends up having her procedure 10 days later in her pregnancy. Sixty percent of economically disadvantaged women said they would have preferred to have their abortion sooner and over one-half reported delays due to making arrangements, including raising money.”
Conclusion
If past litigation of the principles behind the Hyde Amendment is any indication of the Supreme Court’s likely response to future H.R. 7 litigation, women seeking abortion services have much to be worried about. This is especially true should Judge Neil Gorsuch be confirmed as the Court’s Scalia replacement. While Gorsuch hasn’t opined on many abortion-related issues, there are several cases that provide a good indication that he will favor both public and private funding bans—both of which already exist at the state level.[13] In two Tenth Circuit cases, Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor v. Burwell, he sided with plaintiffs who refused on religious grounds to provide contraception coverage to employees in their health insurance policies. Despite assurances to democratic Senators that he “would have walked out of the room” had Trump asked him to overturn Roe if appointed, it seems clear that Gorsuch would not be averse to continuing (or accelerating?) the decades-long process of chipping away at Roe’s protections.
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[1] 432 U.S. 438 (1977).
[2] 432 U.S. 464 (1977).
[3] 432 U.S. 519 (1977).
[4] In an opinion authored by Stewart, the Supreme Court held that (1) the provisions of the Social Security Act governing Medicaid did not require states to cover expenses for medically necessary abortions that were not covered as a result of the Hyde Amendment. McRae at 306-311. (2) The Hyde Amendment did not place any governmental obstacle in the path of a woman choosing to terminate a pregnancy. Instead, by unequal subsidization of abortions and other medical services, the state encouraged an alternative activity deemed in the public interest. Thus, an indigent woman has the same range of choices she would have if Congress had chosen not to subsidize healthcare costs. Harris v. McRae, 488 U.S. 297 (1980)
[5] H.R. 7, Title I, Section 101 [Proposed Chapter 4, Section 301-302]
[6] Id. [Proposed Chapter 4, Section 303]
[7] Id. [Proposed Chapter 4, Section 305]
[8] H.R. 7, Title II, Sec. 201.
[9] Jessica Arons and Madina Agénor, Separate and Unequal: The Hyde Amendment and Women of Color, Center for American Progress (December 2010) at 10.
[10] Id.
[11] Id.
[12] Id.
[13] The ACA allows for states to legislate bans on abortion coverage by private insurance companies in state run healthcare exchanges. Twenty-five states have laws prohibiting insurance coverage of abortion in state exchanges. State Bans on Insurance Coverage of Abortion Endanger Women’s Health and Take Health Benefits Away from Women, National Women’s Law Center, https://nwlc.org/resources/state-bans-insurance-coverage-abortion-endanger-women’s-health-and-take-health-benefits-away-women/ (December 6, 2016). Ten of those states ban insurance coverage of abortion in plans outside the exchange as well. Most states have exceptions for extreme circumstances such as life-threatening pregnancies or pregnancies as a result of rape or incest, but two states – Louisiana and Tennessee – do not have exceptions in any circumstances, even to protect the life of the mother. Eight states prohibit all insurance coverage for abortions as a result of rape or incest.
