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Dl2011 Abortion

Dl2011 Abortion

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09/26/2011

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A proven weapon in reducing abortions

By Denise M. Burke
Vice President of Legal Afairs, Americans United for Life

In recent years, Dr. Michael New of the Uni-

versity of Alabama has analyzed the impact
of incremental state laws on the abortion rate
in each state. In his paper entitled Analyzing
the Impact of State Level Pro-Life Legislation
in the 1990s
, he showed that pro-life laws,
particularly state limitations on the funding of
abortions when coupled with other measures
such as parental involvement laws, were driv-
ing down the national abortion rate. Specif-
cally, his research disclosed a 17% decline in
abortions during the 1990s due in large part to
state laws, including limitations on state fund-
ing of abortions.

His work illustrates that pro-life laws already
save tens of thousands of lives every year. It
also spotlights unprecedented opportunities
to save more lives in states without common
sense prohibitions and limitations on the use
of state funds for abortion and abortion-related
counseling and advocacy. These common-
sense limitations include:

• Limits on state Medicaid funding for
abortion;
• Prohibitions or limits on state funding
to organizations that perform, counsel
on behalf of, or affliate with organiza-
tions that perform or advocate on be-
half of abortion, including eliminating
or restricting funding of organizations
like Planned Parenthood;
• Limits on the use of state facilities

and employees for the performance of
abortions; and
• Prohibitions on insurance coverage for
abortions for public employees;
• Prohibition of all health insurance cov-
erage of elective abortions;
• And in the wake of the passage of fed-
eral health care reform, allowance for
states to opt-out of providing health
insurance plans with abortion cover-
age through their “health insurance
exchanges,” required under the new
healthcare reform law.

ISSUES

State Medicaid Funding

Enacted in 1976, the Hyde Amendment1

for-
bids the use of federal funds for abortions
except in cases where continued pregnancy
endangers the life of the woman or where the
pregnancy resulted from rape or incest. This
standard guides both federal and state fund-
ing for abortions under joint federal-state
Medicaid programs for low-income women.
At a minimum, states must provide coverage
for abortions performed in accordance with
the Hyde Amendment exceptions. However,
a state may, using non-federal funds, pay for
other abortions. Currently, 32 states follow the
funding limitations provided for in the Hyde
Amendment, while 17 states provide broader
funding for abortion.

342

Americans United for Life

Importantly, there have been recent discus-
sions among some in Congress concerning the
possible repeal of the Hyde Amendment. This
creates urgency for states to consider enacting
their own limitations on the use of state fund-
ing for abortions, abortion referrals, and abor-
tion counseling.

Prohibitions on Recipients of State Funding:

There are several tools states can use to limit
and exercise control over who receives state
family planning and other similar funding,
eliminating indirect subsidies to and uninten-
tional support of abortion.

A state can prohibit the use of state-appropri-
ated funds for abortion counseling and/or re-
ferrals. Opponents of this type of limitation
frequently refer to it as a “gag rule.”

A state may also restrict organizations that
receive state funds from associating with en-
tities that perform and/or provide counseling
or referrals for abortion. For example, it may
prohibit the commingling of state funding with
other sources of funding used to provide, refer
for, or counsel on behalf of abortions. In the
same vein, a state can also require the segrega-
tion of staff, facilities, and administrative sup-
port services between segments of a business
providing family planning and other state-sup-
ported services and those providing abortions,
abortion referrals, or abortion counseling.

A number of states, such as Colorado,
Missouri, and Texas2, have already placed sig-
nifcant limitations on re-cipients of state fam-
ily planning and similar funding. For example,
in 2003, Planned Parenthood unsuccessfully
challenged the limitations imposed in Texas.

Earlier that year, the Texas legislature had di-
verted about $13 million away from clinics that
provided abortions and abortion-related servic-
es. In response, Texas Health Commissioner
Eduardo Sanchez sent out a letter to Planned
Parenthood and other state clinics receiving
state family planning funding ordering them
to cease providing abortions or face a loss of
state funding. Ultimately, the State of Texas
prevailed in a four-year legal challenge to the
limitations.

Currently, 14 states have implemented restric-
tions and limitations on recipients of state fam-
ily planning and other funding. To assist states
in this regard, AUL has developed the “Title X
Consistency and Transparency Act.”

Restrictions on the Use of State Facilities

Only a small number of states have restricted
the use of public facilities for the performance
of abortions. The types of facilities typically
covered by such restrictions include public
hospitals and hospitals and health clinics main-
tained through the state school, college, or uni-
versity system.

Limitations on Insurance Coverage

Since state taxpayer funds are used to pay
for insurance policies for state employees, 12
state legislatures have enacted restrictions on
the amount and type of coverage provided for
abortions. Two states strictly prohibit abortion
coverage for public employees, while three
states have an exception for circumstances
where the life of the woman is endangered by
a continued pregnancy. Seven states provide
exceptions beyond the women’s life to cases of
rape, incest, or fetal abnormality.

Defending Life 2011

343

To assist state legislators in prohibiting health
insurance coverage of elective abortions for
public employees within their states, AUL
has developed “The Employee Coverage
Prohibition Act.”

A large number of private insurance plans
cover elective abortions. In fact, according to
the pro-abortion Guttmacher Institute, “87% of
typical employer-based insurance policies in
2002 covered medically necessary or appropri-
ate abortions.” Many pro-life Americans along
with state legislators are now seeking a way to
prohibit insurance coverage of elective abor-
tions in their states. Currently, fve states have
laws, dating back as far as 1978, that prohibit
private insurance plans operating within their
states from covering elective abortions. All
fve have an exception for when the mother’s
life is at risk and one state also allows coverage
when a pregnancy is the result of rape or incest.
Notably, all fve states allow elective abortion
coverage through the purchase of an optional
rider and payment of an additional premium.

AUL has drafted “The Abortion Coverage
Prohibition Act,” to help legislators restrict
abortion coverage by insurance (both public
and private) plans in their states.

Health Insurance Exchanges

The new health care reform law signed by
President Barack Obama on March 23, 2010
requires individual states to operate and main-
tain “health insurance exchanges.”

Health insurance plans offering abortion cov-
erage are allowed to participate in a state’s
exchange and to receive federal subsidies un-
less the state legislature affrmatively opts-out

of offering these plans. Individuals whose
income falls between 150 and 400% of the
federal poverty level receive tax credits to ap-
ply towards health insurance plans in the new
exchanges. If one chooses a plan that covers
abortion, his or her tax credit cannot be used
to directly pay for abortions; however, the tax
credit subsidizes the insurance plan which cov-
ers abortions.

Specifc language in the new health care reform
law (commonly referred to as the “Nelson-Reid
compromise”) permits a state to opt-out of al-
lowing insurance plans that cover abortions to
participate in that state’s exchanges.

Some states have existing laws that prohibit
insurance companies in the state from offering
abortion coverage except through a separate
rider. Under the new health care law, P.L. 111-
148, states are required to affrmatively opt out
of allowing abortion coverage by exchange-
participating health plans through new legisla-
tion or a new amendment to an existing stat-
ute. This is required because of the Supremacy
clause, Article VI, Clause 2 of the Constitution
which causes the federal law to trump existing
state law. Specifcally, P.L. 111-148 speaks di-
rectly to the question of who can make the de-
cision as to whether abortion will be covered in
an exchange-participating plan (see Sec. 1301
of P.L. 111-148 in which issuers of the insur-
ance plan offered through the exchange are the
ones to decide whether or not abortion cover-
age will be offered), and, therefore, the federal
law will trump any existing state law.

To assist state legislators in opting-out of pro-
viding health insurance plans with abortion
coverage through their exchanges, AUL has
developed “The Federal Abortion-Mandate

344

Americans United for Life

Opt-Out Act.” (Similarly, for states wishing
to both opt-out of the federal mandate and to
prohibit insurance coverage for abortion, AUL
has developed the “Abortion Funding Act of
2011.”)

MYTHS & FACTS

Myth: State Medicaid funding restrictions dis-
criminate against poor women and unfairly re-
strict them from exercising their constitutional
right to abortion.
Fact: The Hyde Amendment, which guides
both federal and state funding for abortions un-
der joint federal-state Medicaid programs for
low-income women, has been upheld by the
U.S. Supreme Court. The Court specifcally
found that the restrictions on the use of fed-
eral funds to pay for abortions for low-income
women were not unconstitutional. 3

Moreover, abortion providers, such as Planned
Parenthood, often purposely set the average
cost for a frst-trimester abortion below what
the market would bear, in part, to facilitate the
delivery of abortion services to lower income
women. The average cost for a frst-trimester
abortion is approximately $300-$400, well be-
low the average costs for most other offce or
clinic-based surgical procedures.

Myth: Restrictions on abortion counseling
and referrals violate an organization or indi-
vidual’s First Amendment (free speech) rights.
Fact: Eighteen states currently restrict the
use of state funds for abortion counseling or
referral and none of these state laws have been
declared unconstitutional for any reason. It is
perfectly legitimate for states, through the al-
location of state funds and other programs, to

demonstrate and implement a preference for
childbirth and adoption over abortion.

Endnotes

1

Hyde Amendment to the Medicaid Act, Title XIX of the Social
Security Act (1976).

2

See e.g., Planned Parenthood of Mid-Missouri & Eastern
Kansas, Inc. v. Dempsey
, 167 F.3d 458 (8th Circuit 1999) and
Planned Parenthood v. Sanchez, 403 F.3d 324 (5th Circuit 2005).
3 Harris v. McRae, 448 U.S. 297 (1980).

Defending Life 2011

345

In his paper entitled Analyzing the Impact of State Level Pro-Life Legislation in the
1990s
, Dr. Michael New of the University of Alabama showed that incremental pro-
life laws—particularly state limitations on the funding of abortions when coupled
with other measures such as parental involvement laws—were driving down the na-
tional abortion rate. Specifcally, his research disclosed a 17% decline in abortions
during the 1990s, due in large part to incremental state laws, including limitations on
state funding of abortions.

Common-sense limitations on state funding include:
o Limits on state Medicaid funding for abortion;
o Prohibitions or limits on state funding to organizations that perform, counsel
on behalf of, or affliate with organizations that perform or advocate on behalf
of abortion, including eliminating or restricting funding of organizations like
Planned Parenthood;
o Limits on the use of state facilities and employees for the performance of abor-
tions; and
o Limits on insurance coverage for abortion for public employees.
o And in the wake of the passage of federal health care reform, allowance for
states to opt-out of providing health insurance plans with abortion coverage
through their “health insurance ex-changes,” required under the new healthcare
reform law.

Enacted in 1976, the federal Hyde Amendment1

forbids the use of federal funds for
abortions except in cases where continued pregnancy endangers the life of the wom-
an or where the pregnancy resulted from rape or incest. This standard guides both
federal and state funding for abortions under joint federal-state Medicaid programs
for low-income women. At minimum, states must provide coverage for abortions
performed in accordance with the Hyde Amendment exceptions.

Currently, 32 states follow the funding limitations provided for in the Hyde Amend-
ment, while 17 states provide broader funding for abortion.1

There are several tools states can use to limit and exercise control over who receives
state family planning and other similar funding, eliminating indirect subsidies to and
unintentional support of abortion.

A state can prohibit the use of state-appropriated funds for abortion counseling and/
or referrals. Opponents of this type of limitation frequently refer to it as a “gag

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