The Realities of Government Funded Abortion By Katherine Slye

There have been concerns over the proposed Republican healthcare plan and the restrictions they want to place upon abortion when it comes to government subsidies for insurance. There is also worry about the provision that allows the states to also opt out of paying for abortions through subsidized insurance.

This is not a new issue, just the most recent iteration of the battle over government funded abortions that started in the mid 1970s. Given past outcomes on this issue, if the healthcare plan passes and goes into effect, it is highly likely the Court would uphold the restrictions which would lead to more of the same in the current battle over abortion rights.

In 1976, three years after Roe, the US Congress passed the Hyde Amendment, which prohibited the use of government funds, through Medicaid, to pay for abortions. This bill also allowed the states to choose whether or not to fund abortion through their state Medicaid or similar programs. This was challenged in court, and in 1980, the Supreme Court ruled in Harris v. McRae to uphold the Amendment.

The Court found that “a woman's freedom of choice did not carry with it ‘a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.’” Thus, while a woman had the right to choose to have an abortion, she was not entitled to government money to pay for the procedure.

One might assume that this perceived significant change in opinion in seven years was due to high turnover on the Court. However, in the interim between the ruling in Roe v. Wade, which had a 7-2 decision, and the McRae case (5-4), only one Justice left the Court, Justice Douglas, and was replaced by President Ford with Justice Stevens. Thus, the Court that heard both cases was almost identical. However, in 1980, the outcome was viewed by some as an attack on choice.

The majority in both cases, however, was also drastically similar. Chief Justice Burger, Justices, Stewart, White, and Powell, who all voted in the majority in Roe, voted along with Justice Rehnquist to form the majority in McRae. This demonstrates that the Justices were not voting in a partisan manner in either case, but were interpreting the Constitution as they understood it.

Many of the same Justices who said a woman had the Constitutional protection to make the decision whether to have an abortion did not find a Constitutional right to money to make that choice when the government did not place any restrictions in the way of her freedom of choice: “Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, and indigency (sic) falls within the latter category.”

Given this historical Court precedent, and as some would claim given the current make-up of the Supreme Court, it is likely that if the Republican healthcare bill becomes law, any challenge that reached the Supreme Court would end in an upholding of the restriction. It is probable that the current Court would come to the same conclusions as in McRae: that government is not responsible for paying for someone to exercise a choice, even if a Constitutional choice.

This would not really change the current “lay of the land” when it comes to abortion rights and restrictions in the states. It would simply mean more of the same when it comes to abortion restrictions – where a woman lives would dictate the extent to which she can exercise her right to choose if she relies on government funded or subsided health insurance. However, given that the number of women covered by “government insurance” has increased through the use of the exchanges, even more women might not having abortion coverage in their insurance plan if the GOP plan becomes law. 

Will the Republican healthcare bill become law? Only time will tell. Will the restrictions proposed on government funding for abortion be upheld if included? Probably given past Court precedent. What does this mean for women and the right to choose? More of the same—rights are contingent on geography.

Katherine Slye is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."