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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, September 14, 2009

Health Care and Abortion

our precedents hold, that a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.

-- Ayotte v. Planned Parenthood (unanimous/internal quotes omitted)

Reproductive rights touch upon many areas, but health is clearly an important aspect, a term once defined in this context (in a largely forgotten pre-Roe opinion) to cover "psychological as well as physical well-being." The Supreme Court has determined that, even if it is required to protect against serious health risks, the government can selectively provide health care denying coverage for abortion. The dissents, see particularly FN3 of Stevens' dissent,* challenge this policy rather well. But, it is the law as now understood though seventeen states have broader policies.

This last point is important, particularly since the states include California, New York and even West Virginia; in fact, Mississippi allows Medicaid funded abortions for fetal abnormality. Furthermore, some states allow (these all per a "state option" to take part in the program and use its own funds for such areas) abortion for threats to physical health. [Various opinions in the old "health" case cited above suggests this is both broad and the limits somewhat hazy.] In fact, here, Utah is both listed in that and the fetal abnormality category. Basically, there often is a general understanding this last category is in some fashion a "health" issue. See also, Stevens' footnote.

The bottom line is that even the more restrictive federal Hyde Amendment uses "public funds" toward abortions. It is limited to the life of the girl/woman as well as pregnancies caused by rape or incest, which is a dangerous "loophole" in the minds of some. As noted here, and whatever Obama's past statements were (a general "fact check" discussion on this issue) his actions thus far suggests he would be willing to sign on, there is an amendment on the table which would apply the Hyde Amendment to the new health plan. It might be a realistic compromise, particularly since it would still leave open the path for private plans that provide the service:
The Capps Amendment gave those opposed to abortion both the guarantee they wanted that providers would have adequate conscience protection against having to provide abortions and a prohibition on the use of federal funds to pay for abortions in accordance with Hyde and other current federal law. It made no change in the ability of private insurance plans to decide whether or not to cover abortions, but prohibited private plans from using federal subsidy dollars for abortions. It provides that every state have at least one plan that offers abortion coverage and one that does not, so that someone really opposed to abortion can buy a plan that does not cover that service.

Since a majority of people support abortion rights for some abortions not covered by the Hyde Amendment, as does their religious faiths, this is a principled path that truly respects individual values. Some, of course, would not be satisfied. On the anti side, it should be noted that Obama said it was a fallacy that "this is all going to mean government funding of abortion." Since government already funds abortion, see above (and Planned Parenthood here), it has to be read in context -- does this plan itself "mean" abortion funding will exist? Particularly at the end of the day. Or, was the funding already there, like government pay might "mean" our tax dollars will go to abortions?

You can see there is a bit of wordplay there, but since abortions are already paid by government funds, including in some rather conservative states, only up to a point. On Twitter, Glenn Greenwald noted: "Apparently, one of the most urgent national priorities is to make extra-sure that illegal immigrants and their children have no health care." The desire to deprive women of health care involving abortion as an option is yet another bugaboo in this country. We see that now:
The effect has been millions of women, including those living below the poverty line, military personnel and their dependents, women served by the Indian Health Service, Peace Corps volunteers, and federal employees and their dependents who rely solely on these programs for their medical care are deprived of their right to safe, legal abortion."

So, if some army wife of some low paid military member gets pregnant and finds out the fetus has some severe abnormality, that the fetus for instance will surely not survive birth or more than a few days, the government will not pay for the procedure. Such a procedure, since it can be later term, can cost over a $1000. Such an extreme example underlines the absurdity of the current policy. But, the pro side realize the limits of health care reform, while still understanding the injustices. Thus, something like the Capps Amendment sounds like a compromise one can live with, underlining the logic that compromising does not take things off the table beforehand or take away the reality that the result is far from ideal.

But, just as there is a "major gap in all the plans -- the exclusion of undocumented workers living in the U.S," one which "faith-inspired social justice advocates" should strongly oppose, the result will be that many girls and women will be deprived of health care that they need. Let me be clear, however, it will not mean that no government funding at all will be involved in abortion. Abortion is part of sound health care, and even our often unsound health care policy cannot totally avoid that fact.

So, that will "mean" that a policy that does not change the status quo will in some fashion cover abortion. As well it should. More than it will, most probably.


* "The Court rests heavily on the premise -- recognized in both Roe and Maher -- that the State's legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring 'normal childbirth.' See 432 U.S. at 477, 478, 479. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth."