an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The "Stupak-Pitts" Amendment to Health Care Reform
Priscilla J. Smith
Part II of II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?
As a natural pessimist, I never expected a U.S. national health care plan, much less any watered down health care reform, to cover abortions, though as an eternal optimist, I was hoping to be surprised. Since I expect a Stupak-Pitts approach to prevail (pessimist), it occurred to me that there might be some silver linings here (optimist) and that Stupak-Pitts might open the door to a new challenge to one of the oldest abortion restrictions, and undoubtedly the most devastating, since Roe: the bans on government funding for abortions for low-income American women.
From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. This isn’t much of a silver lining – rob Debra to pay Diane?
Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:
• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension if the experts at George Washington are correct, in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;
• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so, resulting in the dissent (okay I know) by Justice Ginsburg in Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007), in which she wrote:
[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.
• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.
• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim; it would Stupak-Pitts that discriminated against women by preventing them from receiving coverage for all medical-indicated services while granting coverage to men for all their medically-indicated and even what could be called “elective” needs, in other words needing to have an erection at a given place and time. By the way, I only think medical services for erectile dysfunction are “elective” in a world in which abortion is considered “elective,” not a world I’d advocate for, but a world in which many anti-choice folks live.
• Finally, I’m under no illusion that Justice Kennedy would provide a fifth vote; my Kennedy illusions are a thing of the past. Still, I’d point out to any overly confident member of the National Right to Life Committee that when Gonzales v. Carhart was filed, Justice O’Connor was still on the Court and the plaintiffs’ victory was a sure thing. When she retired leaving George Bush with an open pro-choice seat, the vote in the case went from 5-4 to 4-5 overnight. It is possible for things to change quickly again.