On January 22 of this year—the forty-second anniversary of Roe v. Wade—the Republican-dominated House of Representatives passed a bill that, among other things, would make permanent a ban on abortion coverage for low-income women. The measure was opposed by Democrats (save three), and President Obama promised to veto it if it ever got to his desk.
While such progressive resolve is worth celebrating, know this: The ban, also called the Hyde Amendment, has been in effect almost continuously since 1977. What exactly does the Hyde Amendment do? In a nutshell, it denies federal Medicaid coverage for abortion care to women already struggling to make ends meet. Every year, it comes up for approval as part of the appropriations process. Every year, Democrats fail to stop its enactment.
The recent Republican effort underscores the fact that conservatives continue to play offense on the issue of abortion affordability. It is time for progressives to do the same. This abhorrent policy must be ended—and progressives can make that happen by pursuing a left-flank legislative strategy that challenges the status quo.
The State of Play
Unable to make abortion illegal, abortion opponents have pursued an incremental strategy to make the procedure inaccessible. Over the past four decades, they have enacted a series of federal and state restrictions that may seem reasonable at first glance, but in fact interfere with women’s personal decisions and make it impossible for many to end a pregnancy. The most pernicious of these is the Hyde Amendment.
This draconian law forces approximately one-fourth of Medicaid-eligible women who would have had an abortion if the funds were available to carry an unwanted pregnancy to term. Those who manage to find the resources to pay for an abortion out of pocket must often make great sacrifices to divert the needed funds from other essential expenses—risking eviction, having their heat shut off, or going hungry, among other outcomes.
Over time, the Hyde Amendment has become embedded in federal policy, expanded to ban abortion coverage in virtually all federal health plans and programs, including those for civilian and military federal employees and dependents, veterans, Peace Corps volunteers, Native Americans, District of Columbia residents, disabled women, adolescents, and federal prisoners and detainees.
With its disproportionate impact on low-income women and women of color, the Hyde policy is fundamentally unjust, both economically and racially. Moreover, its harmful effects on these women, along with immigrant women, disabled women, and a host of other marginalized populations, can be seen across the full spectrum of progressive policy concerns: The woman in need of abortion coverage is often the same woman trying to secure unemployment benefits, escape a violent relationship, pay her spiking heating bill, or care for the children she already has. It is no wonder, then, that as more members of the “rising” electorate, especially millennials and people of color, learn about the Hyde Amendment, the more they see how it affects them and their communities and how it undermines equality each time policy-makers include it in the federal budget.
Yet conventional wisdom among many center-left Washington insiders is that trying to put an end to the routine re-enactment of the Hyde Amendment—let alone affirmatively requiring abortion coverage in public and private insurance plans—is not only a political non-starter but downright toxic. Indeed, in September 2009, in the midst of a historic push to otherwise expand health coverage in the United States, President Obama took pains to reassure Congress and the public that no federal dollars would be used to fund abortion in any health-care reform legislation, in line with Hyde.
Rather than cementing the preexisting Hyde “compromise,” however, the health-care reform debate blew it up. Though abortion opponents claimed they merely wanted to “maintain the status quo,” they actually used the reform process as a vehicle to win more restrictions. Moreover, while the debate did much to reinforce their stance that there should be “no taxpayer funding for abortion,” it simultaneously served as a catalyst for moving the issue back to the top of the list of priorities among a wide range of reproductive health, rights, and justice organizations. This development was due in part to the fact that the Affordable Care Act (ACA) applied federal restrictions to abortion coverage in the private insurance market for the first time—directly threatening the interests of middle-class voters. Additionally, the outcome reinvigorated many activists who realized that the “politics of respectability”—playing nice and not pushing aggressively for the policies they really wanted—had done little to protect the rights of the most vulnerable women.
There have been largely two camps of federal policy-makers who support abortion rights: those who oppose Hyde in principle but accept it in practice (“pro-choice”), and those who support the legal right to abortion but do not think that right includes a government obligation to ensure that women have the ability to pay for abortion care (“mixed-choice”). The time has come for a third group of abortion-rights lawmakers to step forward: those who are ready to act on the proposition that every woman should receive insurance coverage for abortion care regardless of her income, source of insurance, or where she lives (“pro-coverage”).
The History of Hyde
Despite the efforts of some abortion-rights supporters to fight the Hyde Amendment when it was first passed, the Supreme Court upheld the law in 1980. Soon enough, congressional skirmishes were reduced to questions of whether there would be any exceptions and what kind. The last time the Hyde Amendment faced a serious challenge was in 1993, when the National Black Women’s Health Project (as the National Black Women’s Health Imperative was then known) launched the Campaign for Abortion and Reproductive Equity to mobilize reproductive-rights, civil-rights, and labor organizations in opposition to the policy.
In response, President Clinton did not include the Hyde Amendment in his proposed budget, and Congress sent the Labor-Health and Human Services appropriations bill to the House floor without it for the first time since 1975. Ultimately, Illinois Republican Representative Henry Hyde, the amendment’s sponsor, agreed to add exceptions for rape and incest (at the time, life endangerment was the only exception) as a way to save it.
Although there were additional efforts in 2000 and 2006 to eliminate the Hyde Amendment, as well as ongoing litigation to secure state Medicaid coverage of abortion care, many abortion-rights proponents implicitly conceded that the abortion funding fight had been lost. Indeed, a rift among activists emerged in 1993, when the Freedom of Choice Act (FOCA), which was intended to codify Roe v. Wade, was modified to make clear that it would not reverse state abortion funding bans or parental involvement laws (FOCA was never brought to a floor vote).
Those who supported a FOCA-without-funding strategy continued to oppose the Hyde policy and pursue incremental measures to mitigate its harm but generally invested limited resources in fighting to end it. While clashes continued around later abortion, clinic regulations, and young women’s access to abortion, among other issues, the Hyde Amendment became ossified to the point where conventional wisdom deemed it immovable.
Reopening the Debate
All that changed, however, with the health-care reform effort that culminated in the enactment of the ACA. While far from being the only big fight, the issue of abortion loomed large and almost prevented Congress from passing the final bill.
Abortion-rights advocates anticipated that abortion would be a sticking point. It had gotten much of the blame (most of it unwarranted) for the failure of health-care reform under President Clinton. Those activists—for whom reform of health care was also a high priority—were loath to be blamed again. Thus, some developed a strategy of silence in which the bill would not mention abortion coverage. Instead, they relied on the fact that most private plans already covered abortion care, and considered a process in which Congress would establish a committee of experts to determine which benefits must be covered under the law.
Their opponents, however, had a different idea. They pointed to the Hyde Amendment as precedent and argued that health-care reform should not be used to “change” the “status quo” on abortion funding—but redefined “funding” to include the tax credits for insurance premiums that would be available to some people under the bill. This position was encapsulated by the Stupak Amendment, named after anti-abortion Michigan Democratic Representative Bart Stupak, which would have prohibited the use of federal tax credits or subsidies to purchase any insurance plan that covered abortion care. Health-insurance experts predicted that, because the amendment would have affected a major portion of the market, it would have virtually eliminated insurance coverage of abortion in private plans.
Pro-choice lawmakers pushed back hard against the Stupak Amendment, but instead of starting with a left-flank position—plans should cover abortion care—they proposed a middle-ground compromise, which took the form of the Capps Amendment (named after California Democratic Representative Lois Capps): Insurers could offer abortion coverage, but premium payments made by enrollees would be segregated from public subsidies so that only private funds would be used to pay for abortion coverage. Most abortion-rights advocates ultimately supported that strategy because they expected the Capps Amendment to pick up sufficient support from anti-abortion members, thereby preventing the Stupak Amendment from advancing further.
Instead, the Capps Amendment failed to gain sufficient traction, the House passed the Stupak Amendment, and abortion-rights proponents were forced to negotiate in the Senate from a centrist position and find additional ways to appease abortion opponents. The ultimate result, commonly known as the Nelson Amendment (after Democratic Senator Ben Nelson of Nebraska), was a center-right solution: It featured premium segregation combined with additional administrative burdens and an invitation for states to ban private insurance coverage of abortion in their health-insurance marketplaces. While Nelson’s version of the Stupak amendment failed, those provisions made it into the final bill as a result of Nelson’s closed-door negotiations with Senate Majority Leader Harry Reid and Senator Barbara Boxer. Those new restrictions, along with a presidential executive order reaffirming that federal health dollars would not pay for abortion services, were enough for Stupak’s voting bloc to give final approval to the health-care reform package. The status quo had indeed been changed: Federal law placed restrictions on private insurance of abortion care for the first time and the number of states that restricted abortion coverage in the private market quickly jumped from five to 24.
Instead of taking a victory lap, the more extreme abortion opponents condemned the ACA for “subsidizing” abortion. They argued that money is fungible and that any payments collected by insurers from the government offset the costs of a plan, thus subsidizing plans that cover abortion. Since the enactment of the ACA, abortion opponents in Congress have introduced some three dozen measures that impose restrictions on abortion coverage in private plans and have held five floor votes to pass such restrictions. As long as their efforts to criminalize abortion continue to fail, they will keep working toward their secondary goals of cutting off access and making every woman pay for abortion care entirely out of pocket, in an attempt to put it out of reach for all but the most affluent women—and further stigmatize and marginalize abortion in the process.
For years, conservatives have staked out a hard-right position on abortion, especially the issue of affordability, and built from there. While some conservatives have argued for a more tempered approach, many have not cared if they looked radical or lost votes on bills. What they have cared about—and succeeded in doing—is moving the public discourse in their direction.
Here’s how they do it: First, introduce legislation that includes everything they want—a kitchen-sink bill like the “No Taxpayer Funding for Abortion Act.” Then, introduce miniature versions of the kitchen-sink bill. Some examples include the “Protect Life Act,” which replicated the Stupak Amendment, and the “Hyde Amendment Codification Act.” Next, hold a hearing, then a markup, then a floor vote. Use the process to test the temperature of the public and get a read on what provisions meet the most resistance. When abortion-rights proponents start to gain traction by pointing out, for example, that conservatives are trying to narrow the definition of rape or deny women emergency abortion care for life-threatening pregnancies, offer amendments to mitigate the harshness of those measures and then continue to push the larger ideas.
The result: Abortion foes have been able to pass (though not necessarily enact) sweepingly restrictive bills because they started with the most expansive version of legislation they could imagine and were prepared to deal away small pieces of it along the way. They have learned that if they play the long game and keep pushing their agenda—and especially if progressives fail to push back—their ideas gradually become more acceptable and their bills eventually become law. Moreover, by marginalizing the pro-choice positions of vulnerable lawmakers, they simultaneously make progressive members less inclined to speak up for abortion rights, cost some members their seats, and build political capital and power for a larger conservative agenda.
The idea behind this strategy is known as the Overton window. Joseph Overton, who was the vice president of the conservative Mackinac think tank, posited that for any given issue, there is a narrow window of politically acceptable policy solutions. The window shifts not when the policy options change, but when society’s perception of what is politically tolerable changes. The way to shift the window toward one’s preferred policy solutions is to promote measures that fall outside the window until they become familiar enough to move inside the window.
Here is an example of what the conservative-to-progressive policy continuum looks like when applied to the issue of abortion affordability, with the underlined items representing current policy and, therefore, the current Overton window (this list is meant to be illustrative, not exhaustive, and does not address exceptions that may exist in current law):
- Only out-of-pocket payments for abortion care
- No tax advantages for out-of-pocket payments for abortion care
- Federal ban on private insurance coverage of abortion care
- Some state bans on private insurance coverage of abortion care
- No federal subsidies for private insurance coverage of abortion care
- No federal public insurance coverage of abortion care
- Some state public insurance coverage of abortion care
- Tax advantages for some out-of-pocket payments for abortion care
- No federal ban on private insurance coverage of abortion care
- Federal protections for private insurance coverage of abortion care
- State-required private insurance coverage of abortion care
- Federally required private insurance coverage of abortion care
- Federal public insurance coverage of abortion care
- Direct federal and state payments for abortion care
Appeasement Doesn’t Work
Progressives, however, have usually taken the exact opposite approach from that of their conservative counterparts. Many have been cowed by abortion stigma. They have shrunk from taking a stance outside the window of the politically acceptable, for fear of a strong public rebuke. In the face of proposed restrictions, they have remained silent or offered concessions to appear reasonable, even as the definition of “reasonable” continues to shift rightward. Often, they point to the fact that federal law “already bans taxpayer funding for abortion,” as if that will somehow reassure conservatives that no new restrictions are needed. In short, they have played right into their opposition’s hands, debating the issue on its terms and reinforcing its window over and over again until they are completely locked within it.
There are both structural and philosophical reasons for these different approaches to policy-making. As a general rule, Democratic lawmakers, who tend to favor abortion rights, care deeply about making sensible policy, while today’s Republicans, who tend to oppose abortion rights, do not. What this means is that Democrats typically do not want to put forth legislation that does not appear credible at that moment. Indeed, some believe they cannot even begin to consider undoing the Hyde Amendment until they have a majority in Congress that’s in favor of other abortion-rights positions, such as protecting abortion clinics from being shut down or preserving access to later abortion care.
But waiting to ensure a majority before staking out a strong position on the Hyde Amendment is a recipe for defeat. Not only did the pro-choice vote count decrease in the wake of the 2014 election, but if pro-coverage champions hold off on introducing proactive policies, they will deprive themselves of a critical opportunity to make the case for why they support those policies, thereby failing to lay the groundwork for the culture change needed to shift public opinion on abortion affordability. Forgoing such debate will also leave lawmakers who favor other abortion rights unprepared to act on the issue of affordability when they do obtain more political power. (Think back to how tepidly Democrats championed a single-payer system—or even the public option—during the health-care reform debate, when they had a robust majority in both houses.)
Proactive steps are needed to address another dynamic as well: Some progressives fear that taking an aggressive stance on abortion coverage will further threaten protections for contraception. But the reverse is the case. For 38 years, federal law has said that those who object to abortion do not have to pay for it, and somewhere along the way most pro-choice policy-makers more or less accepted that proposition. It should come as no surprise that they now are being asked to concede the same tenet for contraception.
Employing the current strategies on Hyde—staying silent, debating within the opposition’s frame, offering concessions—will at best preserve the (new, post-ACA) status quo. But more likely, it will result in continued losses on abortion (and contraception) affordability.
It is only by walking back from their tacit agreement to support the Hyde Amendment and by affirmatively asserting that women should have coverage for all their reproductive health needs that progressive lawmakers can ultimately protect recent advances in contraceptive coverage and begin to regain any ground that has been lost on abortion affordability. For the fact of the matter is, while they cannot win on policy without a political majority, they cannot build a majority without adopting their counterparts’ tactics.
The Path Forward
Pro-coverage lawmakers must use the legislative process to lay out their vision for a world in which every woman has coverage for a full range of reproductive care. We need proactive legislation—ideally, a comprehensive bill with primary and secondary provisions that can be replicated piecemeal in other legislation—that at the very least requires health coverage for all pregnancy-related care, including abortion, regardless of a woman’s income, source of insurance, or where she lives.
With such a bill in hand, pro-coverage champions would have a vehicle for raising critical questions: Why should a woman have to choose between putting food on the table and paying for the medical care needed to end an unintended pregnancy? Why should politicians be able to interfere with a woman’s personal decisions by intentionally providing coverage for prenatal care but not abortion care? Why are we as Americans not holding our government accountable to ensure that every woman has coverage for all her health care needs?
The time horizon is irrelevant. The goal would not be to pass such a measure immediately, which is clearly not an option. But given that members of Congress who favor abortion rights are currently in the minority and unable to set a policy agenda, now is the perfect time for them to focus on advancing their principles. The objective of promoting a pro-coverage bill would be to excite their progressive base of supporters while simultaneously introducing the idea of abortion affordability to moderates.
As David Atkins at Daily Kos has noted, “Systematically, piece by piece, the GOP takes what had been considered impossibly radical positions and makes them worthy of consideration just by talking about them—and then makes what had been considered outside possibilities truly possible.” What may seem like a far-left position today—“public funding for abortion”—will appear to be the reasonable policy it actually is after several years of robust debate. Indeed, it is important to remember that the Hyde Amendment itself was hotly contested in its early years and took decades to become regarded as the “status quo.” But in order for a position to be heard and considered, it must be put forth vocally and without apology.
The road map is there; it’s time to use it.