Compromise or Capitulation? (abortion & health care)

Compromise or Capitulation? (unpublished op-ed)

See also Jeffrey Toobin in The New Yorker 11-23-2009.

See also NYT editorial: Abortion and Health Care

At first glance, Congressional negotiations over the health-care reform bill's approach to abortion seem too technical to matter very much to very many people. Nevertheless, small differences in wording will have large consequences for millions, perhaps hundreds of millions of people.

The push by anti-abortionists to ban the use of federal subsidies for private or state health plans that cover abortion would, if successful, have two or more predictable consequences. 1) It would soothe the consciences of those who believe abortion to be murder, by further separating all taxpayer funding from the performance of any abortion except when the life of the pregnant woman is directly threatened (or, in some versions, when the pregnancy stems from incest or rape). 2) It would also separate women who seek an elective abortion from funding that could help them, perhaps even enable them, to obtain the procedure, in cases where the pregnancy resulted from incest or rape as well as in other cases. And there is a third, more speculative and more momentous consequence: it might contribute to the 'unsettling' of Roe v. Wade.



American history contains several models for the resolution of conflicts between individual conscience and the law. One of these is the "C.O. (conscientious objector) model," in which an individual, usually a pacifist, has been legally exempted from having to comply with a law, usually the military draft, when doing so would deeply violate the citizen's core beliefs. Another model is the "direct action model," in which citizens appalled by a law (like the one that forced return of escaped slaves from the north to the south) sought to nullify the law's effects on the ground--to turn it into a dead letter.

Earlier in the negotiations it was well accepted that the 2009 bills would be "abortion-neutral." That is, they would not touch Roe v. Wade, and they would not change the federal guideline on funding, which since 1982 has tended more and more to allow federal reimbursements only for abortions in which the pregnant woman's life could be saved by the procedure. This approach would have protected the "C.O. model" without adopting the "direct action model." But some of the current drafts go farther.

They do so by trying to limit not only the conscientious abortion opponent's involvement in abortion, even where that involvement has been indirect, but also to reduce the access of all women, including impoverished ones, to funding for a procedure which the Supreme Court has found to be a matter of right.

Since opponents of abortion are already not required either to undergo the procedure or to participate directly in its funding, the only logic which supports the extension of restrictions is the one that seeks to overturn the core idea of Roe v. Wade.

The anti-abortion negotiators are not presenting the issue in these terms. And some of the proposals, by allowing for "riders" through which women could obtain discretionary (non-subsidized) coverage, do not clearly mount an attack on a constitutional level. But the ones that close the door altogether do carry that implication, and it is a gorilla that weighs more than 800 pounds.