Reforming the Pro-Choice Market

Some pro-life leaders have advocated repeal of “Obamacare,” because it requires the public in various ways to fund abortion. Although I agree with their assessment of the law, I disagree with their proposed remedy. The pro-life cause would be far better served to keep the current law, provided that it be amended to include something like the original addition proposed by Congressman Stupak that fully excluded elective abortion from all state plans, except as an individual rider, consciously chosen by the insured person.

My disagreement stems not just from the fact that the healthcare law includes various pro-life provisions, such as new help for pregnant women, which may make them less likely to choose abortion. I think that even if these good aspects of the legislation are outweighed by its bad aspects, that is, if the net effect of the legislation at the moment is to advance abortion, it should not be repealed.

In order to explain my position, let’s step back a moment to remember the situation prior to the new law, when health care was, except for the poor, much more market driven. The market was not favorable to life.

While Medicaid for the poor excluded elective abortion under the Hyde Amendment, many or most health plans automatically included fully elective abortion, giving the insured person no choice in the matter and very few effective ways to protest. Simply repealing the new legislation would presumably restore that market situation.

Faced with the federalization of healthcare, both sides could claim sincerely that they wanted the new plan to be neutral on abortion, i.e., they wanted the new law to preserve the status quo ante rather than to advance their own pro-life or pro-choice preferences. But each was referring to a different side of the prior status quo.

Pro-lifers wanted the old rules for healthcare for the poor (the Hyde Amendment) to apply to everyone. Pro-choicers wanted the widespread inclusion of elective abortion in market-based plans to carry over unchanged into the new federal plan. In other words, there was no way the new law could have been fully neutral on abortion from everyone’s point of view. And in fact, as finally enacted, the plan is not neutral, but is rather a compromise with gains and losses on both sides, though with (in my opinion) a net effect in the pro-choice direction.

However, if the healthcare law were amended to exclude all elective abortion”that is, if the Hyde Amendment were universalized and made permanent”pro-lifers would have the best of all worlds and pro-choicers would face their worst nightmare. The rules against funding elective abortion that were once applicable only to the poor would now become applicable to all, taking abortion totally out of the mainstream of healthcare and making it something no one would have covered who had not previously and deliberately chosen an abortion rider.

Would such a glorified Hyde amendment be signed by President Obama? Maybe yes, if it were presented as the only way the necessary funding for his healthcare plan as a whole could ever be approved by the pro-life dominated House of Representatives.

So, dear friends of life, let’s not urge repeal a law which gives us a tremendous chance to promote the cause of life. Let’s urge instead that it be properly amended to exclude abortion.

Richard Stith is professor of law at Valparaiso University School of Law and the author most recently of The Legal Validation of Sexual Relationships (Wm. S. Hein & Co.). His last article for First Things was Her Choice, Her Problem .