Richard M. Doerflinger
An abortion policy most Americans can embrace
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We are told that abortion is one of the most divisive issues in American politics, but one thing has remained remarkably consistent: Most Americans oppose taxpayer funding for abortion. Therefore I was startled recently to see an article by Jessica Arons of the Center for American Progress (The Daily Beast, 9/30) deploring the 36th “unhappy birthday” of the federal abortion funding ban known as the Hyde Amendment—and tagging it as “the amendment that started the war on women.”

“War on women” is the slogan now used to label objections to the Obama administration’s mandate for contraception and sterilization coverage in almost all private health plans, including plans provided by many Catholic employers. The slogan has always shed more heat than light. The mandate in question is as much an imposition on women who do not want to be forced to pay for these items as it is on their employers. And objections arose precisely because the mandate itself is an unprecedented innovation in federal law, threatening to derail a longstanding balance between “pro-life” and “pro-choice” voices in our society.

Since the Supreme Court cases in Eisenstadt v. Baird (1972) and Roe v. Wade (1973), the government has not had legal authority to prevent women who want contraception, sterilization or even abortion from choosing them. But those who disagree have not been forced to facilitate or purchase these drugs and procedures, or to pay taxes for them in the case of abortion. The breakdown of that balance—symbolized in the current Democratic platform’s pledge to uphold women’s right to abortion “regardless of ability to pay”—is increasingly visible.

The Hyde Amendment, in particular, is an odd choice for emphasizing the extremism of the pro-life side. It first took effect on Oct. 1, 1976, sponsored by Republican Henry Hyde of Illinois, but passed by a House and Senate that were overwhelmingly Democratic. As a rider to the annual appropriations bill governing domestic federal health programs, it has been renewed with little change for 36 years, supported by congressional majorities and presidents of both parties as well as by public opinion. It would be difficult to name an abortion-related policy that has garnered more bipartisan support over a longer period of time.

Challenges to the Amendment

The amendment was not always so secure. When first enacted 36 years ago, it faced three objections or challenges: It was said to endanger women’s lives, conflict with the right to abortion defined in Roe v. Wade and even impose an unconstitutional “establishment of religion.”

First, in the years following enactment, government officials and private researchers who opposed the amendment scoured the nation, seeking evidence that it had driven many low-income women to unsafe “back alley” abortions that endangered their lives. They could not find that evidence. The Centers for Disease Control and Prevention found “no evidence of a statistically significant increase in the number of complications from illegal abortions,” but rather a decrease in reported complications from legal abortions.

Second, opponents filed suit against the amendment to claim that it violated the newfound constitutional “right” to abortion—and specifically that it nullified that right for low-income women who cannot otherwise afford to pay for an abortion. But in the landmark case of Harris v. McRae in 1980, the Supreme Court explained that the abortion right, like most constitutional rights, is a right to be free from government interference. In other words, it did not translate into a right to demand active government assistance to obtain abortions.

Third, these suits argued that the amendment rested on nothing but theological ideas about “when life begins” and the moral wrongness of abortion—ideas that could not be written into law without violating constitutional guarantees against an “establishment of religion.” But here, too, the Supreme Court showed a great deal of common sense. The court said it could not find all laws against larceny unconstitutional just because the Bible has a commandment against stealing. Whatever views may be held by different religions, the Hyde Amendment served a legitimate secular interest—that of “encouraging childbirth over abortion” in all but the most extreme circumstances. After all, said the court, “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”

In later cases the court has moved away from the biologically uninformed term “potential life.” In Planned Parenthood v. Casey in 1992, for example, the justices said the government may regulate (though not prohibit) abortion in ways that “express profound respect for the life of the unborn” (emphasis added). Such regulations have been passed in many states and have had a real impact on abortion rates.

Reducing Abortions

As for Hyde itself: If it has not endangered women, violated Roe or established Catholicism as the official religion of the United States, what has it done? Chiefly, it has done something that people on all sides of the abortion debate say they want—it has reduced abortions.

Before Hyde went into effect, the federal Medicaid program was paying for almost 300,000 abortions a year for low-income women. Legal authorities had concluded that once abortion was permitted as a medical procedure under Roe, the Medicaid statute’s general requirement for funding all “medically necessary” procedures covered any abortion that a woman and her physician agreed on—unless Congress passed a law stating otherwise. Under Hyde, the number of federally funded abortions plummeted to a fraction of one percent of this figure, and has stayed there.

This does not mean that the amendment has prevented 300,000 abortions a year nationwide. Seventeen states provide their own public funding for abortion for Medicaid-eligible women, usually because state judges have declared an abortion “right” in state constitutions that goes beyond Roe v. Wade to demand public funding. And many women covered by the amendment have used private resources to have abortions. But by conservative estimates, a ban on public funding of abortion in programs like Medicaid reduces abortions among women in the program by about 20 to 35 percent.

Some estimates go further. In 2002, a study in the journal of the Guttmacher Institute (formerly the research arm of Planned Parenthood) found that the abortion rate among Medicaid-eligible women is twice that of other women in states that do not provide public funding for abortion. If the state does fund abortions, these women’s abortion rate doubles again, rising to four times the rate of other women.

Mother and Child

A question has circulated among Catholics for some time about reducing abortions: Do we achieve this by combating poverty or by passing abortion funding bans and other pro-life laws? The answer to the question is: Yes. We need to do both, especially because we reverence the dignity of both the mother and her child. But if you want to reduce abortion rates, even while abortion remains legal under Roe, laws like the Hyde Amendment provide an important part of the answer.

Even more remarkably, some studies have concluded that unintended pregnancy rates are lower in states that ban public funding of abortion: When abortion is more expensive, or harder to access in other ways, men and women take more care not to begin a pregnancy in the first place.

By contrast, programs to expand access to contraception have often failed to reduce unintended pregnancies or abortions. An apparent exception, a new study in St. Louis called Contraceptive Choice, claims to have reduced both pregnancy and abortion rates among low-income women. But it required persuading 75 percent of the subjects to accept a hormonal implant or an intrauterine device that can be removed only by a physician; participants were then regularly followed throughout the study to make sure they stayed with the program.

For 36 years the Hyde Amendment has reduced abortions, encouraged men and women to be more responsible about risking pregnancy and respected the consciences of the majority of taxpayers who morally object to abortion. More broadly, it has implemented a federal policy of seeking to respect unborn life and prefer live birth to abortion, even while abortion remains legal. It is the most positive federal policy to be maintained on abortion since Roe was handed down almost 40 years ago. If abortion advocates want to attack it as part of an alleged “war on women,” that may only highlight the extreme nature of their own agenda.

Richard M. Doerflinger is associate director of the Secretariat of Pro-Life Activities, U.S. Conference of Catholic Bishops, and adjunct fellow in bioethics and public policy at the National Catholic Bioethics Center.

Comments

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Virginia Edman | 11/19/2012 - 11:00pm
It is really good to read a rational presentation of the abortion problem in the United States, without the heavy, judgemental language that so often accompanies the subject.  I think women speak of a war on women because of the clericalism and male domination in the Church and,for that matter, in the world.  I does not have to be that way, and thankfully some writers, like Richard Doerflinger, can explain the political scene without the blame.
Frank Huber | 11/13/2012 - 10:24pm
Thank you for unveiling the Hyde Amendment history to us. I, too, am greatly disturbed by the "War on Women" phrase. It has bent perspective away from the man's responsibility in pregnancy in an attempt to empower the woman's choice. While I doubt we will seriously criminalize the men who participate in "unwanted" pregnancies, it might be helpful to bring to light that by ignoring them, we indeed may be empowering the use of abortion as the solution.
SUSAN OLENSKI JLP MEd | 11/12/2012 - 11:48pm
Let's make it a crime for a man to impregnate a woman who isn't his wife. That would resolve most of the abortion problem and take care of all the single mom families and the resultant social problems.
Sara Damewood | 11/12/2012 - 12:03pm
Thank you for this good history of the Hyde amendment. Makes sense to me, and I'll use the information in my advocacy!
Michael Gillman | 11/12/2012 - 10:23am
It's good to hear people pushing back on the "War on Women" rhetoric! It is such an empty, manufactured slogan concocted by political consultants. "Here it's only three words and none of them are the word, abortion!" You can almost hear them coming up with it. Many liberal Catholics face some consternation about voting for the Democratic party because of their position on abortion, the President's campaign showed a complete lack of respect for our position by adopting this rhetoric. I am not a woman but if I was I can tell you that I would seriously object to having my political concerns being reduced to what goes on below my waist. There is a serious problem in the pro-choice and the pro-life movements (in the movements themselves, not necessarily in all people who hold these positions), there is a complete lack of respect or understanding of the other side's position. Of course this doesn't happen by accident, it is a result of our political process. Both movements are organized and demand strict loyalty inside the parties that they have claimed as their own. Both parties use the issue to essentially coerce voters into voting for their side. Because the nation is relatively divided on the issue so this equilibrium cannot be broken. One thing that could turn the tide is for one side to reach out to the other (specifically the pro-life side to focus on standing alongside pregnant women in love) as their brothers and sisters and start trying to change hearts rather than making it all some political game. This could break the gridlock. But alas, forming a modern political interest group is seductive. It brings power, self-righteousness, and means you never have to get your hands dirty. This is the way of the world, NOT the way of the Kingdom. Christianity is not a set of results it is a METHOD (a Way).
Lisa Weber | 11/10/2012 - 9:09pm
Thanks to Mr. Doerflinger for an interesting article about an amendment that gets less attention than it deserves.  Decreasing abortions, and the perceived need for abortions, is a goal that everyone should be able to support.

Reverend Dierks (#2)  Societies, all of them, have yet to adjust to the changes brought about by the ability of women to control their fertility - whether that is by natural family planning or with use of contraceptives.  I don't include abortion in "controlling fertility" because I consider abortion to be a "multi-system failure", morally unacceptable.

In the U.S., women have generally rejected the 1960-70's feminist movement because of its anti-men, anti-family, hateful rhetoric.  We are moving toward a co-ed world, one where cooperation between men and women is both necessary and enjoyable.  In developing a co-ed world with equality between men and women, women have a great deal to learn from men about leadership in community (rather than family) settings.  Men also have things to learn from women.  On the road to a more equal, co-ed world, assertions like, "There is a war on women..." are fruitless and offensive.
C Walter Mattingly | 11/10/2012 - 12:43pm
Reverend Dierks (#2),
While many of us, including myself, would agree with your contention that the church could be more inclusive of women, it is difficult to see the validity of much that you state here, especially as it applies to the US. Whereas the question of women priests may be to many a desirable objective, I see no necessary direct correlation to that subject and abortion. As for equal pay for equal work here in the US, that is already the law of the land. If a woman feels a violation of that right, she is in a position to go to the courts and, if her argument is confirmed, receive compensation for that wrong. Likewise with education. The majority of students in our colleges and universities are females, not males, a stunning turnaround from just 30 years ago. Some Ivy League colleges, I hear, are trying to find ways to balance the gender population without being seen as discriminating. Hence the risk women may experience in this area is not discrimination, but rather reverse discrimination such as Caucasians felt they were experiencing a short while ago. Also, women have had the right to vote for some time and can and are electing women to office. With the empowerment of the majority of women who are graduating from our universities and colleges, this trend is likely to become more pronounced.
As regards the article itself, especially encouraging is the observation that those states which deny public funding of abortions have fewer abortions. As that is the goal of almost all pro-choice and all pro-life advocates, everyone should take note of that trend. 
sheila dierks | 11/9/2012 - 4:06pm
It is always interesting to read such reasoning about abortion from a man, even one whose credits imply that he is knowledgable about ethics.  One might ask about his position on the ethics of our church's position on the ordination of women, or equal pay for equal work, and whether he has written so intensely about such issues.  From my side of the gender conversation they are ALL connected.  As long as we have a culture (which is world-wide) that deminishes the role of women in the world, the minimalization of education for girls, the permission to pay women less, the refusal to elect women in more than token numbers to the statehouses of the land, and especially the blind eye turned to the access to safe and affordable contraception, we will have a culture of abortion. As long as women "learn their place as less valuable then men in the church and the marketplace" then there will be a culture of abortion. There is a war on women, though it is convenient for men who might benefit from such a war to deny its existence.

 If Mr Doerflinger has put his body on the line, his words, his work, his reputation with the bishops and the church to be by word and action prophetic, then he will gain the opportunity to speak about abortion and merit some attention.
PAUL LOATMAN JR | 11/9/2012 - 10:45am
A well-reasoned argument on a complex issue that is far from being resolved. Recent debate on the subject often overlooks the history of the Hyde Amendment and it should be more regularly explained by the clergy and hierarchy. Focus on extreme attempts to re-criminalize abortion are totally unrealistic and divert attention from things that can actually be achieved to reduce abortion. Equally important, as the author notes, more positive action must be taken by both the government and the Church to reduce poverty and strengthen family life, especially for those trying to survive on the margins of society.