Nowhere to Hyde

Nowhere to Hyde

The healthcare reform debate exposed the weakness of the prochoice movement. What now?


The months of debate and politicking around the healthcare overhaul provided a glimpse of the political strength of the prochoice movement that hasn’t been possible for years. The picture that emerged wasn’t pretty, as supporters of choice found that they don’t have the influence many assumed they did. Almost as soon as the reform process began, abortion rights became a bargaining chip. And after the frenzied horse-trading that finally produced a law, women across the country were left with less access to the procedure and a seriously weakened power base from which to protect and advocate for abortion rights.

"It’s an enormous setback," says Laurie Rubiner, vice president for public policy for the Planned Parenthood Federation of America.

How did an invigorated prochoice movement, still pumped up from Democratic victories in 2008, wind up shafted?

For many, the loss was as unexpected as it was disappointing. Obama’s election had instilled a sense of political safety. For the first time since Bill Clinton was in office, there was a Democratic majority in both houses and a prochoice president. After the dark period of the Bush years, when prochoice advocates’ best hope was to minimize their losses, long-shelved goals suddenly felt possible. The most optimistic set their sights on getting rid of the Hyde Amendment, the 1976 provision that forbids the use of federal funds to pay for abortion in most cases.

"Many of us in the reproductive justice community were looking for a huge leap forward with Obama," says Lois Uttley, co-founder of Raising Women’s Voices, a national initiative devoted to making sure women’s concerns are addressed by healthcare reform. "We really hoped that we might actually be able to make some progress in overturning Hyde."

Because of Hyde, poor women in most of the country have had to scrounge for the money to pay for abortions (though seventeen states now have laws allowing Medicaid dollars to be spent for most medically necessary abortions). While the majority of poor women who can’t get Medicaid to pay for their abortions still go through with the procedure, somewhere between 18 and 37 percent continue their pregnancies, according to research by the Guttmacher Institute, an organization that does research and policy analysis on reproductive health.

Yet, in the past year and a half, instead of abolishing Hyde and convincing the country that current policy amounts to discrimination against poor women, Uttley and others wound up looking on in dismay as Obama’s top legislative priority, healthcare reform, ensnared and ultimately set back abortion rights generally–and funding for abortion in particular. In order to win the support of antichoice Democrats and save the bill, the Obama administration embraced the principle of Hyde, signing into law a bill that, in the words of Planned Parenthood president Cecile Richards, "goes far beyond current law by placing unreasonable burdens on those who want to either offer or purchase private health insurance coverage for abortion." Desperate to keep healthcare reform alive, even prochoice groups found themselves defending the public-funding ban they so despised. "The most damaging thing about healthcare reform is that even our prochoice leadership has been, through no fault of their own, reinforcing Hyde," says Laura MacCleery, director of government relations and communications for the Center for Reproductive Rights.

The compromise on abortion coverage that became law was only slightly less odious than the Stupak Amendment, which, to the horror of prochoicers, passed the House in a 240-194 vote on November 7, and would have prevented any health plan that receives federal money from paying for abortions. Politically, the Stupak vote laid bare the fact that there simply aren’t enough people willing to go to bat for abortion in Congress. The resounding vote count, coming late on a Saturday evening after hours of back-room scheming, was no surprise to Washington insiders on both sides of the issue. They already knew what would soon become plain to everyone else: a Democratic majority is not the same as a prochoice majority. And many Democrats who entered Congress in the past few elections not only oppose abortion but will work as a bloc to stand in its way.

In fact, the Democratic majority in the House that many found so comforting in the last election was largely won by the party’s decision to embrace socially conservative candidates, including opponents of abortion. Consider some of the recently elected House Democrats who voted for Stupak. Heath Shuler, who represents western North Carolina and beat a Republican incumbent in 2006, has, along with Bart Stupak, lived in the Washington residence owned by the religious organization The Family. On every occasion possible, Shuler has voted against choice. He even opposed the international distribution of condoms, as did his friend Brad Ellsworth, an Indiana House member who defeated a six-term Republican incumbent and opposes abortion and stem cell research. Then there’s Kathy Dahlkemper from Pennsylvania, another Democrat who knocked out a Republican incumbent, in 2008. Dahlkemper has spoken on the House floor about how her own unintended pregnancy shaped her opposition to abortion.

In all, sixty-four House Democrats voted for the Stupak Amendment, most of them representing conservative districts where many constituents are uncomfortable with the notion of public funding for abortion. A 2009 poll conducted by the Pew Research Center suggests that this critical antichoice demographic may be growing. Not only did the poll document less support for abortion overall than in previous years; it also found one of the biggest increases in opposition to be among white, non-Hispanic Catholics who attend Mass at least weekly, a description that fits Bart Stupak and many of his constituents.

Democratic opposition to abortion has traditionally come in what some Congress-watchers refer to as the "Harry Reid model," since the Senate majority leader, though antichoice, has been noticeably levelheaded, willing to work with others on the issue, and clear about his support for contraception and services for women and children. By contrast, after the vote on Stupak, it became clear that some House Democrats were ideologues in the fiery Republican mold, just as hardline as some of their colleagues across the aisle.

Indeed, Stupak managed to wrest the role of chief abortion opponent in healthcare reform from the Republicans, overtaking them in self-serving histrionics and sheer drama (though Randy Neugebauer, a Republican Congressman from Texas, helped Republicans reclaim their rightful position as the party of heckling wackos when he screamed out "Baby killer!" on the House floor as Stupak was defending the reform bill). Stupak insisted that his willingness to hijack the entire healthcare reform process was a matter of principle. But his resistance to efforts to honestly resolve funding questions after his initial stand showed him to be primarily concerned about drawing attention–both to the issue and himself. (Obama played his part in this charade. If his last-minute executive order had any function, it was to be a face-saver for Stupak, who ultimately signed on to reform. Instead of restating what the bill already said, the decree might as well have read: "For Bart Stupak, for being a really important player in healthcare reform. Really.")

The Stupak vote set off a wave of outrage among supporters of choice, spurring Stop Stupak campaigns, a gush of contributions to Planned Parenthood and a primary challenge to Stupak. But the prochoice side did not do much better when the debate moved to the Senate, where another Democrat, Ben Nelson, led the charge to restrict abortion coverage, proposing an amendment requiring any woman who wants insurance to cover the procedure to write a separate check for that premium. The Nelson Amendment also requires health plans to keep funds for abortion separate.

As the final vote neared, prochoice Senators Barbara Boxer and Patty Murray worked hard to keep Stupak-like language completely banning abortion coverage out of the bill, but they couldn’t even make a show of being able to stop Nelson. Around this time, Scott Brown had won the special election in Massachusetts, dispensing with the Democrats’ supermajority and putting the fate of healthcare reform in serious jeopardy. Though the major advocacy groups raised strong objections to the Nelson language–Planned Parenthood called it "offensive," NARAL Pro-Choice America called it "outrageous" and "unacceptable"–neither advised voting against the bill. While the Catholic bishops had used this strong-arm tactic to bring the Stupak Amendment to a vote in November, prochoicers cared too much about the other parts of the bill that benefit women to put the bill in peril. Moreover, by the time the Senate was voting, it was clear that abortion rights supporters simply didn’t have the numbers on their side.

But if prochoice leaders felt beleaguered, the outcome was not so much a reflection of their loss of influence as a painful public display of their longstanding political weakness. "The conditions that allowed healthcare reform to totally exclude abortion existed before it happened," says Frances Kissling, a visiting scholar at the Center for Bioethics at the University of Pennsylvania, who was president of Catholics for a Free Choice for twenty-five years. "The difference now is that everyone knows we’re powerless." Or, as Tanya Melich, a political consultant who has worked on women’s issues for thirty years, puts it, "We’ve never had the votes. And we’ve always had antichoice Democrats."

Indeed, by some measures the prochoice movement is actually in better shape than it’s been in for years. "This is the best vote count we’ve had in my time here," says Donna Crane, policy director for NARAL, where she has worked for eleven years. "But we’re still more than thirty votes short in the House and almost twenty away from a prochoice Senate."

How can we be doing better than ever and yet still so poorly? If you count just those who are strictly pro- or anti-, there are actually forty-one senators who consistently vote in favor of choice in the Senate, versus just forty who consistently vote against it. In the House, there are 203 strict opponents of choice, 185 in favor. But the real battle lies in the middle, the remaining nineteen senators and forty-seven representatives who vote according to the issue at hand. Activists have long known that the abortion war is to be won or lost in this gray area. Abortion opponents have done better in constructing wedge issues, through legislation such as "partial birth" bans and the Stupak and Nelson amendments, attracting lawmakers who are neither firmly pro- nor antichoice but on the fence.

Now, of course, the Nelson Amendment is law. And unless it is mitigated or eliminated through the regulatory process (a possibility that policy experts and lawyers are delving into), it will definitely create hassles for both women and insurers and will probably result in some health plans dropping abortion coverage altogether. Politically, it will likely create a new platform for antiabortion groups, which are expected to push state legislators to ban abortion coverage offered in their state-level exchanges (existing policies outside the exchanges would not be affected).

The new law and the debate that preceded it set back the prochoice movement in subtler ways, too. Among the collateral damage was the delicate effort that had been under way to loosen restrictions on some abortion coverage. Before the healthcare reform debate, prochoicers had been within a handful of votes of overturning a ban on abortion coverage through the Federal Employees Health Benefits (FEHB) plan, making the case that salaries earned by government workers should be considered private dollars. But such a win now seems impossible.

"Whereas before, only direct money was considered federal funds, now even things like government underwriting or government administering of programs are considered public," says Planned Parenthood’s Rubiner. "We knew [healthcare reform] gave the antichoice side an opportunity to impose Hyde on everyone, and they went far with it."

How can abortion rights supporters regain the ground they’ve lost? Part of the usual fix, getting more prochoice lawmakers into Congress, has been complicated by healthcare reform. Traditionally, prochoice PACs enforce their power by supporting only those candidates and lawmakers who support their exact positions. EMILY’s List, for instance, contributes to the campaigns of women candidates who vote exclusively prochoice–and almost always drops people who vote for anything that would set back reproductive rights. The fact that the healthcare legislation included abortion restrictions initially put the group in a quandary, but after much discussion it decided not to impose negative consequences on supporters of healthcare reform.

NARAL and Planned Parenthood’s Action Fund, which score candidates according to their voting record on reproductive health issues, have decided not to include the final healthcare reform vote in scoring, a decision that reflects the fact that even their most loyal supporters in the House voted for the final legislation. Both groups categorized the Stupak vote as "antichoice." But, even with the antiabortion language, they couldn’t judge the final vote the same way. According to Rubiner, this was both because healthcare reform offers so many benefits to the low-income women Planned Parenthood serves and because the Nelson language wasn’t as onerous as that of the Stupak Amendment. "Stupak was an outright ban on abortion coverage, period. It was very black and white," says Rubiner. "Nelson, by contrast, sets up a very cumbersome scheme by which insurers can provide coverage, but it doesn’t ban it."

The fight has begun to define the meaning of healthcare reform in the midterm elections–and the crucial battleground is swing districts, where sentiment on abortion is murky. A recent poll conducted for the Susan B. Anthony List, a group that supports women antiabortion candidates, showed that in seven of eight Congressional districts represented by antiabortion Democrats who voted for Stupak, most voters said they would be less likely to support the re-election of their representative if he or she voted for a healthcare bill that included federal funding of abortion. Of course, the healthcare bill doesn’t do this–notwithstanding the claims of extreme abortion opponents (à la Randy Neugebauer). So prochoicers have to set the record straight on that score. But abortion rights supporters also have to convey how the new law actually sets those rights back, depriving women of access to a legal medical procedure–an argument that could potentially gain the sympathy of gray-area voters.

It’s probably unreasonable to hope for anything more. Yet some advocacy groups, such as NOW and Raising Women’s Voices, are aiming higher–pushing to finally roll back Hyde. Given what we’ve just learned about Congressional backing for public funding, such an effort will clearly be a steep uphill battle. Yet you can see why some of the boldest activists think its time has come. With the other side, led by Stupak, having alienated at least some of the public with its extremism, prochoice advocates hope the pendulum of moderates’ sympathy will swing their way.

The real policy setbacks of healthcare reform could also serve as the wake-up call for women that prochoicers need. Because the new law will bring about a major expansion of Medicaid, and also because the economic downturn has driven up the number of uninsured, more and more women will soon be in the position of relying on government-subsidized or -provided health insurance. And thus more and more women will likely have abortion excluded from their medical coverage. Advocates are already thinking about how to best harness their discontent. "We’ll be trying to convince women to tell their stories about what it means not to have that coverage," says Uttley of Raising Women’s Voices. "We think we have a chance. As long as people think it’s someone else who won’t get coverage, they won’t care. Once they realize it’s the family next door, the lady who sits behind them in church, then their hearts can be changed."

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