Center for Reprodutive Rights

The debate over abortion coverage within the larger health care reform dialogue has been painfully narrow for those of us who believe that as a matter of equality, due process, and sound public health policy, abortion should be treated like other medical procedures. From early on when the so-called Capps Amendment, with the support of pro-choice members of the House, was added to the original bill, the best that abortion rights supporters could hope for was that plans within the exchange would voluntarily cover abortion, so long as federal funds were not used and were strictly segregated. Coverage of abortion within the public option would be left to the discretion of the administration. With the adoption of the Stupak Amendment by the House, the situation is now even worse - abortion coverage can only be offered through a separate rider, and cannot be included in the public option, thus making it unlikely that women will be able to obtain abortion coverage at all, even with their own money. The current Senate bill contains language similar to the Capps compromise, but the Senate will also consider further restrictions on abortion coverage.

The current debate over insurance coverage for abortion focuses on how best to reflect the so-called status quo that federal money will not be used to fund abortions. That status quo is the direct result of the Supreme Court's misguided decision in Harris v. McRae. In Harris, five members of the Court upheld the Hyde Amendment, an appropriations limitation passed annually by Congress, which limits federal funding of abortions to procedures necessary to save the woman's life or to terminate a pregnancy resulting from rape or incest. That limitation stands in stark contrast to the far broader "medically necessary" standard applicable to all other health services provided under the federal Medicaid program. The Harris majority upheld the funding limit against a due process challenge on the grounds that the ban "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy," and constitutes a valid expression of government preference for childbirth over abortion. According to the majority opinion, "the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all."

As Justice Brennan argued forcefully in dissent, the majority failed to recognize the coercive effect of the Hyde Amendment: