By Dan Gilgoff, God & Country
After a week of debate over whether the House healthcare bill includes taxpayer-funded abortion, there's an emerging consensus—in the news media, at least—that it does not, except in very rare instances. (Antiabortion activists say the ban on federal funds is a "bookkeeping fiction.")
But a curiosity in the bill that's received little attention is that its ban on federal money for abortions is governed by a regulation that many Democrats, including President Obama, oppose and have vowed to repeal.
According to an amendment to the House bill adopted last week by the Energy and Commerce Committee, the government's healthcare plan can't use federal funds for any abortions that are already restricted by the Hyde Amendment, a law that bars Medicaid from using federal dollars for abortions except in the case of rape, incest, or where the life of the pregnant woman is in danger.
Should the Hyde Amendment be repealed, however—a move that many Democrats, including Obama, have said they support—the House bill would permit federally funded abortions in the public health insurance option and in government-subsidized private plans offered through the proposed health insurance exchange. The Hyde Amendment, first passed in 1977, comes up for reauthorization every year as a rider to the appropriations bill for the Department of Health and Human Services.
"In the future, should Congress say it doesn't need the Hyde Amendment, it would be odd that the only place in which it would apply is in the health insurance plan," says an aide to Democratic Rep. Lois Capps, who authored the recently adopted amendment outlining abortion coverage. "So we're saying the health insurance plan follows the same rules as the federal law."
If the law is changed to allow federally funded abortion through Medicaid, in other words, federally funded abortions would also be allowed through the government-run health insurance plan.
The Capps amendment ties the health insurance plan's abortion coverage to the Hyde Amendment by stipulating that the plan use federal funds only for abortions that are permitted to receive federal funds by the health and human services appropriations bill in any given year. If the Hyde Amendment is repealed, granting HHS the power to fund abortions, that would give the same power to the health insurance plan.
In his 2010 budget, Obama declined to request the Hyde Amendment's repeal, disappointing many abortion rights advocates.
But Obama is on record as opposing the Hyde Amendment. "Obama does not support the Hyde Amendment," an aide in Obama's presidential campaign wrote in 2007, responding to a questionnaire by an abortion rights group. "He believes that the federal government should not use its dollars to intrude on a poor woman's decision whether to carry to term or to terminate her pregnancy and selectively withhold benefits because she seeks to exercise her right of reproductive choice in a manner the government disfavors."
At the moment, there appears to be little Democratic appetite for repealing the Hyde Amendment, lest the effort amp up the culture wars and derail the party's other legislative priorities. The amendment has passed in various forms for over 30 consecutive years, including times of Democratic-controlled Congresses and presidential administrations, according to the Guttmacher Institute.
Nonetheless, abortion rights opponents say they are worried. Though the Senate passed a Hyde Amendment-like rule for Indian health services in the previous Congress, just nine Democrats supported it. Since then, the Republicans have lost seats in both houses.
"In 2010, when the health and human services appropriations bill comes around with the Hyde Amendment, Obama could say, 'We're already paying for elective abortions through public health insurance, so how can I deny this [Medicaid] population?' " says Douglas Johnson, legislative director for the National Right to Life Committee. "He will say, 'How can I renew the Hyde Amendment?' "
Recently, Obama seemed to indicate upholding the spirit of the Hyde Amendment in his healthcare plan. "I'm pro-choice," he told CBS News's Katie Couric, "but I think we also have the tradition in this town, historically, of not financing abortions as part of government-funded healthcare."