11.09.09

Is Stupak Constitutional?

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As you all know, the House passed HR 3962, the Affordable Health Care for America Act, late Saturday night, November 7, by a vote of 220 to 215. In doing so, it adopted a handful of amendments. The most important amendment was the Stupak amendment, which the House adopted by a vote of 240 to 194. The Stupak amendment extends to all health services funded under the Act the prohibition found in the current Hyde Amendment, which forbids Medicaid payments for abortion except in cases of pregnancies caused by rape or incest or where the pregnant woman’s life is endangered by physical disorder, illness, or injury. All but one Republican voted for the amendment (one voted present), as did sixty-four Democrats. This post addresses the question of whether the Stupak amendment is constitutional.

The Stupak amendment specifically prohibits the use of any funds authorized or appropriated under the Act “to cover any part of the costs of any health plan that includes coverage for abortion,” except in cases of rape, incest, or physical life endangerment, even if the abortion coverage is paid for by an insured individual with a separate premium. Private plans can only offer abortion coverage to persons receiving federal affordability subsidies if the coverage is offered as separate supplemental coverage, paid for with premiums that are not subsidized under the Act and that fully cover the administrative costs of the abortion coverage. The public plan may not offer abortion coverage at all. Private plans that participate in the exchange and include abortion coverage (i.e. plans that are sold without affordability credits) must also offer plans through the exchange that are identical in every respect except for not covering abortion. Exchanges are not required to offer plans that cover abortion.

The amendment covers all funds authorized and appropriated under the Act. It is not, therefore, limited to the affordability credits, but also to credits paid to small employers to encourage them to insure their employees and presumably to other programs like school-based health clinics, nurse managed health centers, or health services for Native Americans that are also funded under the Act. Under HR 3962 as originally drafted, exchange-participating plans were not allowed to discriminate against providers on the basis of their willingness or unwillingness to provide abortions; under the amendment plans are only prohibited from discriminating on the basis of unwillingness. Provisions of HR 3962 unaffected by the Stupak amendment also state explicitly that the federal and state governments may not discriminate against providers or plans for refusing to cover, provide, or refer for abortions and that federal and state abortion and conscience protection laws are expressly not preempted by the health reform law.

The Supreme Court has long upheld restrictions on public funding of abortions. Four years after its landmark decision in Roe v. Wade recognized the constitutional dimensions of a woman’s decision whether or not to terminate a pregnancy, the Court held in Maher v. Roe that neither the state nor federal governments had an obligation to fund abortions. Three years later the Court in Harris v. McRae upheld the Hyde amendment limiting abortion funding, holding that the government’s refusing to fund abortions for indigent women neither violated their right to have an abortion, equal protection, nor the Establishment Clause. On the same day in Williams v. Zbaraz the Court held that the states were not required to fund abortions not required by the federal Medicaid law. In Webster v. Reproductive Health Services in 1989 the Court upheld a state law prohibiting the use of public facilities or public funds for abortion services. Finally, in Rust v. Sullivan in 1991, the Court upheld a HHS regulation that prohibited private doctors who received funding for family planning services from giving abortion information to women receiving the services except when necessary to prevent a serious threat to a woman’s life. Quoting Webster, the Court stated “The government has no obligation to ‘commit any resources to facilitating abortions.’” All of these cases were decided prior to the Court’s 1992 decision in Planned Parenthood v. Casey, in which the Court arguably strengthened the government’s hand in expressing “profound respect for the life of the unborn,” and, of course, before the Court’s most recent foray into abortion jurisprudence, in Gonzales v. Carhart, in which it simply assumed the continued viability of Casey without expressly endorsing the Court’s earlier decisions. It would seem, therefore, that insofar as the Stupak amendment limits federal funding for abortion, it stands on firm constitutional ground.

Assuming Stupak to be constitutional, three additional observations about HR 3962 and abortions may be in order. First, in Webster v. Reproductive Health Services, Justice Rehnquist, in the course of upholding a Missouri state law banning the use of its public hospitals for performing abortions, observed in a footnote, “A different analysis might apply if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded. This case might also be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose.” We are a long way from socialized medicine, and the Stupak amendment does permit private insurers to offer abortion coverage as long as it is covered by supplemental coverage, but a total ban on third party payment for abortion might be a closer question.

Second, state constitutional law in this area is not coextensive with federal constitutional law. Although the Hyde Amendment has long prohibited the use of federal Medicaid funds to pay for abortions, seventeen states fund medically necessary abortions through their state medical assistance programs, and thirteen do so under court orders interpreting state constitutions. State courts that have required the state Medicaid programs to fund abortions have relied on rights of privacy, equal protection, or equal rights for women found in their own constitutions.

These state constitutional law cases have generally relied on the fact, however, that the Medicaid program is in part state-funded and that the states fund other medically necessary services for recipients through these programs. Thus, for example, funding childbirth but not abortion might raise equal protection concerns. The Stupak amendment expressly allows states to pay for supplemental abortion coverage as long as the coverage is not applied toward a state’s Medicaid match. But, since states will not be paying for health coverage through the exchanges (except to cover state mandates, in which case they must reimburse the federal government for the additional cost of affordability credits), they would not seem to be under a state constitutional obligation to equally fund abortion coverage. Indeed, since the Medicaid expansions under HR 3962 are, at least at the outset, funded 100% from federal funds, the states may not even be obligated to cover the new Medicaid enrollees.

Third, and finally, another provision of HR 3962 that has received little attention deserves note. Section 2529, titled “postpartum depression,” states that:
“It is the sense of Congress that the Director of the National Institute of Mental Health may conduct a nationally representative longitudinal study (during the period of fiscal years 2011 through 2020) on the relative mental health consequences for women of resolving a pregnancy (intended or unintended) in various ways, including carrying the pregnancy to term and placing the child for adoption, miscarriage, and having an abortion. This study may assess the incidence, timing, magnitude, and duration of the immediate and long-term mental health consequences (positive or negative) of these pregnancy outcomes.”

In Gonzales v. Carhart, Justice Kennedy, writing for the Court, famously noted, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained . . .Severe depression and loss of esteem can follow.” The study that HR 3962 authorizes may replace Justice Kennedy’s speculation with actual data, although not for some time.

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[…] Politico is also featuring a discussion on the Stupak Amendment. Here’s the contribution from Timothy Stoltzfus Jost a law professor. While the primary impact of the Stupak amendment is to make it impossible for Americans to use the affordability credits created by the proposed legislation to purchase insurance policies that cover abortion, its scope goes well beyond that, blocking the use of any funds authorized or appropriated under the health reform legislation for abortion coverage. See this. It essentially applies the Hatch amendment, which has long applied to Medicaid program, to all of the new programs created under the House bill. It is clearly constitutional, but not necessarily wise. See this. […]

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