Forty years after abortion was made legal by the momentous Supreme Court ruling in Roe v. Wade, women’s access to reproductive health options are more restricted than they have been since. Although support for Roe v. Wade is at an all-time high of 64 percent, state anti-abortion legislation and federal restrictions continue to create steep barriers to access by many women. These barriers undermine religious liberty for women. The reenactment each year of the Hyde Amendment, restricting coverage of abortion services is especially troubling.
While the political uproar over restrictions on abortion and contraception that erupted during the presidential campaign prevented further backsliding on women’s reproductive freedom for now, it has not yet led to any effort to reverse the most egregious measures still in effect. The current legal status quo ensures, as a practical matter, that millions of women who might need an abortion will be unable to exercise their right to access one in accordance with their own moral and religious beliefs. The Hyde Amendment’s language, which dates to 1977, has varied from year to year; when abortion opponents in Congress are strong, its exceptions are limited to saving the life of the woman or in cases of rape, or incest; when abortion rights forces gain strength, it expands a bit to include cases where a woman’s health is endangered by a pregnancy. Regardless of the exceptions, the Hyde Amendment has always been the bulwark of the anti-abortion agenda.
Hyde started as a limit on Medicaid coverage. Poor women were an easy target. It has been expanded to include federal employees and their dependents, a share of whose health insurance is paid for by the federal government. It now includes military personnel and their dependents, disabled women on Medicare, federal prisoners, Native American women using the Indian Health Service, and even Peace Corps volunteers (who don’t even get the exceptions mentioned earlier). From year to year it has barred the District of Columbia from using locally raised taxes to cover abortions.
The pervasiveness of the Hyde Amendment led to the insertion of similarly unjust restrictions in the Affordable Care Act. That language requires that, for health plans operating in the state-based exchanges, insurance premiums to cover abortion be segregated from premiums for all other health care services, lest federal subsidies somehow enable abortions. As a result, it is not at all clear that private insurance companies will continue to offer any abortion coverage under the new law due to these convoluted provisions – a significant step backward – and that’s just what abortion opponents wanted.
This special treatment for abortion services is driven by a desire to eliminate all access. Its proponents make no secret of their intent. State and federal laws have adopted the views of a minority driven on religious grounds to end access to abortion altogether, regardless of its constitutional status. This isn’t a secret or inferred truth – certain religious groups have made the elimination of abortion a central point of their policy agendas, based on their religious teachings and beliefs.
That the government is enlisted in this battle puts it in opposition to those seeking to exercise what the Supreme Court deems to be a constitutional right. It puts the government in the position of making a moral judgment according to the religious criteria of abortion opponents. When it does so, it deprives every woman whom Roe was supposed to protect of her religious liberty. It is women who are denied access to abortion on the same basis as other health care because of some groups’ religious objections, as embraced by the government. It is one thing for opponents to work privately to persuade women not to have abortions. It is quite another for their views to become public policy. In some ways, whether public opinion supports access to abortion or not is beside the point. The Constitution supports it, and therefore no government body should be involved in undermining it.
We must reverse course and assert our support of the principles of Roe. President Obama should put forward a budget without the Hyde language – one that ensures every woman is accorded her constitutional right to make her own faith-informed decision about abortion rather than privileging the views of those who oppose it. Removing the Hyde language would undoubtedly lead to a vigorous and emotional debate in Congress. It would force the hand of proponents to justify it on something other than religious grounds. It would be a beginning to restore the promise of Roe for every woman, regardless of her income – that the question be decided, as Justice Blackmun wrote, “by constitutional measurement, free of emotion and of predilection.”
Nancy K. Kaufman is the chief executive officer of the National Council of Jewish Women, a grassroots organization inspired by Jewish values that strives to improve the quality of life for women, children, and families and to safeguard individual rights and freedoms.
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