How Health Care Reform Means More Access to Abortion, Not Less

No one seems to have much noticed, but the health care bills winding their way through Congress will do more to expand abortion access in low-income communities than any single step since the Supreme Court’s 1973 ruling in Roe v. Wade. That’s not what you’ve been hearing as the fight over the Stupak amendment [2] rages. But as the bills are written, it’s true.

The bill passed by the House last month would extend Medicaid coverage [3] to Americans with incomes of up to 150 percent of the federal poverty line, or about $16,000 for a single person, by 2013. The Senate package is slightly less generous: It would apply to those with incomes of up to 133 percent of the federal poverty line, or about $14,000 for a single person, and it wouldn’t kick in until 2014. Still, the Congressional Budget Office estimated that either bill would add 15 million [4] people covered by Medicaid over the course of the next decade.

That in itself won’t increase abortion access, because the Hyde amendment [5], passed by Congress in 1976, bars the federal government from reimbursing states for abortion-related Medicaid expenses (with exceptions for rape and incest [6], as well as abortions that are necessary to protect the life of the mother). But importantly, Medicaid is a joint federal-state program. And in 13 states, courts have ordered state governments to use their own money to fund abortions for women who receive Medicaid—of whom there will be millions more, post-health care reform.

The states administer Medicaid, and the federal government reimburses [7] the states for somewhere between 50 cents and 84 cents of every Medicaid dollar that they spend. The Hyde amendment prevents the federal government from reimbursing the state’s abortion expenses, but it doesn’t stop the states from paying for abortion on their own. In 1981 in Massachusetts, a Medicaid recipient who went by the pseudonym “Mary Moe” joined several other plaintiffs and sued the state to pay for abortions. In 1981, the state’s highest court ruled [8] that Massachusetts could not discriminate between women who choose to terminate their pregnancies and women who choose to carry to term. If the state paid the medical bills of the latter, it had to pay for the former as well.

Courts in Alaska [9], Arizona [10], California [11], Connecticut, Illinois, Minnesota [12], Montana, New Jersey [13], New Mexico [14], Oregon, Vermont, and West Virginia [15] have followed Massachusetts’ lead [5]. These courts have defined the phrase “medically necessary” quite broadly. A Connecticut court, for example has said that an abortion is medically necessary if a physician determines that pregnancy would be “deleterious to a woman’s physical and/or psychological health.”

Altogether, 30 percent of Americans live in states under court order to cover abortion costs for Medicaid recipients. Although the CBO has not provided a state-by-state breakdown of the House and Senate plans’ effects, a back-of-the-envelope calculation indicates that by 2019, given the expansion of Medicaid under either the House or Senate bill, about 4.5 million more Americans would enroll in Medicaid in states with abortion coverage. Since more than two-thirds [16] of adult Medicaid beneficiaries are female, the health care plan thus could extend abortion access to as many as 3 million American women.

In the fight over a Stupak-like amendment [17] to the Senate’s health care bill, Majority Leader Harry Reid asserted that his health care plan preserves the “status quo [18]” on abortion. In one sense, he’s right: The federal government did not reimburse states for abortion-related expenses pre-2009, and whatever reform package ultimately passes almost certainly won’t change that. In another sense, he’s savvy: Pro-life Democrats and Republicans would no doubt be even more reluctant to support health care reform if they realized that their vote would aid abortion-seekers. But the fact remains that in 13 states, more women will have access to abortion if health care reform passes.

Admittedly, in a nation with a female population of 150 million, the 3 million or so women who because of health care reform will join the Medicaid rolls in states covered by court orders to fund abortions account for a small share of the total number of potential abortion-seekers. But these 3 million women are also among the ones whose reproductive choices are most constrained by costs: A $500 surgical abortion [19] can be prohibitively expensive for a woman who makes less than $14,000 to $16,000 a year. And although the expanded access to abortion would be modest, it stands in stark contrast to the Supreme Court’s recent ruling restricting abortion rights [20], not to mention the dire warnings pro-choice advocates have sounded about Stupak [21]. At a time when pro-choice advocates have few victories to celebrate, maybe the health care bill will, in the end, be a rare win.