|Last Congress when the Stupak/Nelson amendments were added to the health care reform bill, the choice community initially agreed not to use the health care debate to further abortion rights. Rather they were convinced or convinced themselves that the 30 year status quo on the Hyde Amendment and the issue of funding would be the a position they should endorse. It was felt that health care reform was so important to the country and to the well being of women in general that nothing that a fight to eliminate the Hyde amendment was not worth doing. Sadly that fight has been held in abeyance since Harris v McRae was decided in 1979 which upheld the Hyde provisions. Sadly also some of the national choice groups also felt that this was not even a fight worth having. Their acquiescence and silence allowed the president to say in an interview with Katie Couric that prohibiting federal funds for abortion was a "federal tradition".
The way the Hyde Amendment has worked in the last 30 years is that it has to be annually reauthorized in the appropriations process. Every year, each committee has to put its restrictions into the language governing disbursement of monies. Hyde initially targeted poor women in the Medicaid program. Over the years, more programs have had the restrictions added. Military women, veterans programs, Indian Affairs money, even Medicare money for the disability component (!) and the last and really important restriction was to the Federal Employees Health Benefit Program. When they added that, even if employees used private funds to supplement their policy choices, they still could not get a insurance which covered abortion. That was passed in 2002 when the Republicans controlled everything.
Of course we lost on the anti abortion restrictions in health care. We lost even worse than was initially thought were had lost. The interim High Risks Pools , that were being set up prior to the 2014 start of the exchanges, all abortion coverage was banned, not just Stupak or Nelson restrictions.T
he Hyde amendment had not been not challenged directly for 30 years. Hyde targeted poor women and the assault that began on poor women has now become a big, wide open, back door to eliminate access for all women. It is a perfect demonstration about why principles should be upheld. When you don't do that, you lose, literally. The choice community keeps fighting defensive fights on a rapidly eroding beach. With this bill and future bills based on the theory embedded into it we could be swept out to sea.
During the Stupak debate, we argued that the anti choice right was being inconsistent in their assault on the halth care exchanges. If taxpayer money wasn't permitted for abortion then how could they allow employer provided coverage because they got tax credits. Then by their theory employer provided care was suspect. The right has taken up that challenge and become consistent with this bill. Of course if taxpayer money was implicated in insurance coverage, it would be the same for the tax status of churches. Consistency only goes so far.
HR #3 does 2 serious things plus it has some some truly inflammatory things which are meant to be a shiny bauble to distract the opposition. They heinous rape provisions which everyone knows about now, as it has be decried from the rooftops, is a negotiating ploy by the right. I will go into that more in the next post. this awful provision and it is awful,os one they would "reluctantly" give up in order to pass the whole bill. We focus on that, alone, they will be laughing all the way to the bank.
The Smith bill, aka No Taxpayer Funding Act, 2 serious components are
1. It codifies the Hyde Amendment so that the yearly appropriations process would be eliminated. That would eliminate the ability to rescind it. It would also codify the idea that unlike every other positive right we have, women's right to an abortion can be restricted.
Scott Lemieux at Lawyers, Guns and Money says it in his:
My Annual Lecture on the Hyde Amendment and "Positive Rights"
The argument made by people who don't understand the issues is that there couldn't possibly be a constitutional problem with the Hyde Amendment because American constitutionalism only protects "negative" rights - it's a contradiction in terms for there to be a "right" to taxpayer funding. The problem with this argument is that it isn't true. First of all, there are explicit "positive" rights in American constitutionalism, most prominently the Sixth Amendment's right to counsel. In addition to this, there are plenty of other examples of cases where there isn't a right to government assistance per se, but when a program is created it cannot arbitrarily exclude people. There isn't a right to education, but states cannot provide (at least in theory) an unequal education to some groups. Of even more direct relevance, the Supreme Court has held that if a state university funds secular publications it must also fund religious publications, although there's obviously no right to taxpayer-funded publications per se. (And that's a tougher case, because there's a plausible argument that such subsidies violate the First Amendment.) Indeed, the Court's conservatives have pushed this reasoning even further, recently arguing in dissent that religious groups are entitled to taxpayer money even if they refuse to comply with neutral antidiscrimination criteria.
So the constitutional arguments against the Hyde Amendment are hardly based on some alien, un-American reasoning. There isn't a constitutional right to health care, per se, but having established a health care program the government can't arbitrarily exclude a class of persons from the benefit. Proponents of the Hyde Amendment don't even pretend that the exclusion of funding for most abortions is based on a legitimate neutral criterion (such as expense or medical necessity); its core purpose is to obstruct the exercise of a fundamental right. The constitutional problems with this are obvious, and don't require arguments different than those that have been advanced by Scalia, Thomas, Rehnquist, Alito et al. in different contexts.
HR #3 is based on the fundamental premise of the Hyde Amendment and its prohibition on taxpayer funding...However the consequences in th efuture will not just be confined to abortion rights, but the positive rights of anyone and everyone. This could cover everything from contraceptive coverage to benefits for same sex couples to yes churches to anything the tax code plays a part in.
The other part of the bill would use the tax code to essentially eliminate abortion coverage from insruance provided by employers. Employer provided insurance was left alone in the health care bill. Millions and millions of American women would lose that coverage. The Guttmacher Institute has done a study on abortion and insurance. Almost all employer coverage includes abortion and their show shows that it is used
The Guttmacher Institute's federally supported study, which assessed levels of insurance coverage for a wide range of reproductive health services, found that 87% of typical employer-based insurance policies in 2002 covered medically necessary or appropriate abortions; the data can be found in Table 1 here.
Importantly, the 87% of plans that covered abortions did not include plans that offered abortion coverage only in very limited circumstances (such as rape and incest, or to protect the woman's life). Only a very small number of respondents offered such limited coverage, and they were not included in the study's findings.
The study queried all large insurers (those with at least 100,000 enrollees) and a random, nationally representative sample of small insurers.
Their study showed more utilization than earlier studies because they asked for more complete information from those who would have better access:
The Kaiser Family Foundation found that 46% of covered workers had coverage for abortion; the data were released as part of Kaiser's 2003 Annual Employer Health Benefits Survey. Another iteration of that survey, from 2010, found that three in 10 employers said they covered elective abortion, but the 2010 survey had a far higher rate of employers who could not or would not answer the question (71% in 2010 vs. 26% in 2003).
Differences between the Guttmacher and Kaiser studies
The Guttmacher study queried the medical directors of insurance companies and asked them about the typical insurance policy they wrote for employers. It might not account for the fact that some employers may purchase atypical plans, such as plans with high deductibles that may not cover a range of services, including abortion.
Kaiser directly queried employers' human resources staff about their firm's coverage, but many of them either could not or would not answer the question.
Guttmacher's study asked about medically necessary or appropriate abortions. The 2003 Kaiser study asked about abortion coverage, unspecified, and the 2010 iteration asked about "elective" abortion; in either case, some employers may have answered "no" even if coverage were available for abortions in some circumstances.
Millions of women, and I mean millions would lose the ability to get an abortion. You can't get one if you can't afford to pay for one. Lack of funds would not only affect the women, it would have negative effects on those who provide it and how safely it can be provided.
There is no need to overturn Roe if it can be done through a back door. Like the frog slowly boiling in the water, these restricitions won't drop like a decision from the Supreme Court. Overturning Roe would be very mobilizing...too late, but motivating. However if abortion can't be accessed, it will leave the women of America in the same postion as blacks were in the South before the Voting Rights Act was passed. Back then there was technically a constitutional right to vote, but the actual ability to access the polling booth was next to nil. This bill would do that to women.
Next 2 post I will talk about the inflammatory rape provsion. And I will elaborate the very dangerous and far reaching theory behind this bill about the fungibility of federal money. If in some fashion federal money allows you - either a person or even a state - to spend your private money - then the federal money has now has control over your own money. Given that they argue that they can tell you in some way ot another what you can do with your non federal money - either private or state funds.
As David Waldman, aka KagroX, has very cogently said.
" Take the rape provisions out, and you're left with a bill that paves the way for using the tax code to select every American's health care options for them, direct from Washington."