Repeal is Job #1

As pro-lifers return from this week’s March for Life in Washington, DC, there exist plenty of reasons for optimism.  In recent years pro-lifers have made impressive gains in the court of public opinion.  These gains have been the largest among America’s youth and the media reports of the March will undoubtedly express surprise at the number of students who were in attendance. Furthermore, even though recent statistics indicate that abortions increased slightly in 2008, the overall numbers have dropped by nearly 25 percent since the early 1990s. These are all good signs.  Unfortunately, amidst all this sunny news, one development from 2010 has the ability to undermine much of the hard fought progress the pro-life movement has made since the Roe v. Wade decision. That is, of course, this last spring’s passage of Obamacare.

The danger that Obamacare poses to the pro-life movement is twofold. First, if abortion is listed as a federal health benefit, that could easily nullify or weaken a number of important state level pro-life laws including parental involvement laws, waiting periods, and informed consent laws. Second, Obamacare provides federal funds to insurance plans which cover abortion. This should concern pro-lifers for several reasons. There is plenty of evidence that government subsidies for abortion increase abortion rates. Additionally, one reason why the abortion rate in the United States has fallen is the substantial decline in the number of abortion providers. In fact, the number of abortion providers has declined by nearly a third since 1982. A steady flow of federal funds to abortion providers could stem or even reverse this trend.

As such, the repeal of Obamacare has to be the top priority for the pro-life movement. And the news is not all bad.   Even though supporters of health care reform succeeded in enacting Obamacare this past spring, it is fair to say that the pro-life movement offered the most effective opposition.  As such, the pro-life movement is in a unique position to offer effective support for its repeal. Indeed, the least popular aspect of Obamacare was the federal subsidies for insurance plans which covered abortion. Many Americans — even many who do not consider themselves pro-life — are opposed to any government funding for abortion. As such, the pro-life movement needs to keep abortion funding at the forefront during the upcoming debates over the repeal of Obamacare.

Indeed, during the deliberations over health care reform the Obama administration and its allies were well aware of the potency of the pro-life movement. They quickly realized their pro-choice political allies would never support an explicit ban on federal funds to insurance plans which included abortion. As such, they launched a concerted campaign to convince the general public that Obamacare would not increase the abortion rate in America. Among the claims that they made were that 1) increasing funding for contraception would lower the abortion rate 2) the experience of Commonwealth Care in Massachusetts provided evidence that the abortion coverage would not increase abortion rates and 3) some countries with more extensive public health benefits had lower abortion rates than the United States.

Now these claims were all, to put it mildly, weak empirically.  A 2002 Guttmacher Institute study found that a very small percentage of sexually active women forgo contraception due to either cost or lack of availability.  Regarding public health care benefits and abortion rates, there is virtually no peer reviewed evidence indicating that more generous public benefits of any kind reduces the incidence of abortion. The specific example of Commonwealth Care in Massachusetts was unpersuasive since a high percentage of Massachusetts residents already possessed health insurance prior to the enactment of Commonwealth Care. Finally, while it is true that some European countries with single payer health care have lower abortion rates than the United States, it should be noted that our abortion rates are falling while theirs are increasing.

The pro-life movement, and most Americans in general, did not find these arguments put forth by supporters of Obamacare compelling. As such, as President Obama struggled to find the votes in the House of Representatives necessary to pass Obamacare, he shifted strategies. President Obama pledged to sign an executive order that would purportedly ban federal funds from going to insurance policies that would fund abortion. Obamacare supporters hoped that this would purchase some political cover for pro-life Democrats and convince some Americans that Obamacare did not actually fund abortion.

Of course, nearly all analysts, both pro-life and pro-choice agree that the executive order is close to meaningless.  Cecile Richards of Planned Parenthood called it a “symbolic gesture.” Additionally, after the executive order was announced, NARAL, NOW, and other groups that support legal abortion did not call for the defeat of Obamacare. Furthermore, in the months after the passage of Obamacare, the National Right to Life Committee found that the Department of Health and Human Services agreed to fund high risk insurance plans in Pennsylvania, Maryland, and New Mexico all of which included abortion coverage. The outcry did prompt a policy change from the Obama administration. But the policy change was due to the outside scrutiny, not the legal weight of the executive order. Furthermore, the Obama administration vowed that this policy change “is not a precedent.”

As the debate over the repeal of Obamacare takes place this year, the Obama administration and its allies are sure to recycle last year’s arguments again. They will make a concerted effort to legitimize the executive order.  Additionally, they will spin Obamacare as something that pro-lifers should support, or at least not oppose. However, the pro-life movement needs stay on message and publicize the fact that Obamacare will result in federal funding for abortion.

Moving forward, the pro-life movement has some legislative options. On Thursday, two pieces of pro-life legislation were introduced in Congress, H.R. 3 “The No Taxpayer Funding for Abortion Act.” and H.R. 358 “The Protect Life Act.”  H.R. 3 was introduced by Congressman Chris Smith (R-NJ). This bill would create universal, permanent ban on federal taxpayer funding of abortion. Furthermore, unlike the Hyde Amendment it would not have to be annually renewed.  “The Protect Life Act,” introduced by Congressman Pitts (R-PA) would rewrite multiple provisions of Obamacare in order to prohibit federal subsidies for abortion.  Enacting either of these pieces of legislation would be an important first step.

However, the pro-life movement cannot stop there. Ultimately, greater federal control over health policy may succeed in removing abortion from public debate. This is a goal that supporters of legal abortion are likely to pursue.  After all, abortion rights advocates typically try to achieve their policy objectives via administrative or judicial fiat — instead of the democratic process.  As such, as pro-lifers return from the March for Life we should rightly celebrate the important incremental progress that we have made. More importantly, however, pro-lifers also need to realize that future progress may well hinge on our ability to repeal Obamacare.

Michael New is an Assistant Professor at The University of Alabama and a Fellow at the Witherspoon Institute in Princeton, NJ.