STATE FUNDING LIMITATIONS:

A proven weapon to reduce abortions

By Denise M. Burke

Vice President & Legal Director, Americans United for Life

In 2004, and again in 2006, while a Research Fellow at the Harvard-MIT Data Center and Harvard’s prestigious Center for Basic Research in the Social Sciences, Dr. Michael New looked at the impact of incremental state laws on the abortion rate in each state. In his paper titled Analyzing the Impact of State Level Pro-Life Legislation in the 1990s, he showed that incremental pro-life laws, particularly state limitations on the funding of abortions when coupled with other measures such as parental involvement laws, were driving down the national abortion rate. Specifically, his research disclosed a 17% decline in abortions during the 1990s due in large part to incremental state laws, including limitations on state funding of abortions.

His work illustrates that incremental pro-life laws already save tens of thousands of lives every year. It also spotlights unprecedented opportunities to save more lives in states without common-sense prohibitions and limitations on the use of state funds for abortion and abortion-related counseling and advocacy. These common-sense limitations include:

Limits on state Medicaid funding for abortion.

Prohibitions or limits on state funding to organizations that perform, counsel on behalf of, or affiliate with organizations that perform or advocate on behalf of abortion, including eliminating or restricting funding of organizations like Planned Parenthood.

Limits on the use of state facilities and employees for the performance of abortions.

Limits on insurance coverage for abortion for public employees.

ISSUES

State Medicaid Funding:

Enacted in 1976, the Hyde Amendment¹ forbids the use of federal funds for abortions except in cases where continued pregnancy endangers the life of the woman or where the pregnancy resulted from rape or incest. This standard guides both federal and state funding for abortions under joint federal-state Medicaid programs for low-income women. At minimum, states must provide coverage for abortions performed in accordance with the Hyde Amendment exceptions. However, a state may, using non-federal funds, pay for other abortions. Currently, 32 states follow the funding limitations provided for in the Hyde Amendment, while 17 states provide broader funding for abortion.

Prohibitions on Recipients of State Funding:

Often called a “gag rule” by abortion proponents, 18 states have enacted restrictions on the use of state funds for abortion counseling or referrals, and/or restricting organizations that receive state funds from associating with entities that provide counseling or referrals for abortion. Meanwhile, a small number of states, such as Missouri and Texas, have sought to limit or eliminate state funding to abortion providers and advocacy organizations such as Planned Parenthood.

Restrictions on the Use of State Facilities:

Only a small number of states have restricted the use of public facilities for the performance of abortions. The types of facilities typically covered by such restrictions include public hospitals, and hospitals and health clinics maintained through the state school, college, and university system.

Limitations on Insurance Coverage:

Since state taxpayer funds are used to pay for insurance policies for state employees, 12 state legislatures have enacted restrictions on the amount and type of coverage provided for abortions.

MYTHS & FACTS

Myth: State Medicaid funding restrictions discriminate against poor women and unfairly restrict them from exercising their constitutional right to abortion.

Fact: The Hyde Amendment, which guides both federal and state funding for abortions under joint federal-state Medicaid programs for low-income women, has been upheld by the United States Supreme Court (USSC).² The Court found that the restrictions on the use of federal funds to pay for abortions for low income women were not unconstitutional.

Moreover, abortion providers, such as Planned Parenthood, often purposely set the average cost for a first-trimester abortion “below what the market would bear,” in part, to facilitate the delivery of abortion services to lower income women. The average cost for a first-trimester abortion is approximately $300, well below the average costs for most other office or clinic-based surgical procedures.

Myth: Restrictions on abortion counseling and referral violate an organization or individual’s First Amendment (free speech) rights.

Fact: Eighteen states currently restrict the use of state funds for abortion counseling or referral and none of these state laws has been declared unconstitutional for any reason. It is perfectly legitimate for states, through the allocation of state funds and other programs, to demonstrate and implement a preference for childbirth and adoption over abortion.

State of the States:

Where Are We Now?

CURRENT LAW

State Medicaid Funding:

The majority of states follow the funding limitations set forth in the Hyde Amendment:

Thirty-two states and the District of Columbia generally follow the federal funding standard: Alabama, Arkansas, Colorado, Delaware, the District of Columbia, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.

o Indiana and Wisconsin also provide funding for abortions when a woman’s physical health is threatened by continued pregnancy.

o Iowa, Mississippi, Virginia, and Utah also provide funding for abortions in cases involving fetal abnormalities.

One state, South Dakota, provides state funding for abortions only in the case of life-endangerment, in apparent violation of the federal standard.

Seventeen states use state funds to provide all or most so-called “medically necessary” abortions:

o Four of these states have done so voluntarily: Hawaii, Maryland, New York, and Washington.

o Thirteen have done so pursuant to a court order: Alaska, Arizona, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont, and West Virginia.

Prohibitions on Recipients of State Funding:

Eighteen states currently prohibit organizations that receive state funds from using those funds to provide abortion counseling or to make referrals for abortion, and/or prohibit organizations that receive state funds from associating with entities that provide counseling or referrals for abortion: Alabama, Arizona, Illinois, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Virginia, and Wisconsin.

Restrictions on the Use of State Facilities:

Meanwhile, ten states have enacted restrictions on the use of some or all state facilities, such as public hospitals, for the performance of abortions: Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, and Pennsylvania.

Limitations on Insurance Coverage:

A handful of states have banned abortion coverage in public employees’ insurance policies or in other cases where public funds are used to insure employees. These policy limitations range from a complete prohibition on coverage to abortion to offering coverage only when the abortion is necessary to preserve the woman’s health and life, where the pregnancy resulted from rape or incest, or in cases involving fetal abnormalities.

Two states completely ban insurance coverage for abortion for public employees: Colorado and Kentucky.

Three states provide abortion coverage only when a woman’s life is endangered: Illinois, Nebraska, and North Dakota. In Nebraska, an individual employee may pay for a policy rider covering abortion in other instances.

One state restricts coverage only to cases of life endangerment, rape, or incest: Ohio.

Six states provide coverage when a woman’s life or health is endangered or in cases of rape, incest, or fetal abnormality: Massachusetts, Mississippi, Pennsylvania, Rhode Island, Virginia, and West Virginia.

Meanwhile, four states prohibit private insurance companies from covering abortion, except in cases of life endangerment: Idaho, Kentucky, Missouri, and North Dakota.

What Happened in 2007

Nine states enacted measures to restrict the use of government funding for abortions:

Missouri enacted two measures prohibiting organizations that receive state funds for alternative abortion services from counseling or referring women for abortion, and prohibiting such organizations from being associated with other organizations that counsel or refer women for abortion.

Ohio enacted a measure prohibiting insurance coverage for abortion for government employees and prohibiting the use of public funds, employees, and facilities for abortion, except for cases of life endangerment, rape, and incest.

Oklahoma enacted a measure prohibiting the use of public funds, employees, and facilities for abortion and prohibiting organizations receiving public funds from counseling and referring women for abortion, except to save the life of the mother. Physicians may, however, provide nondirective counseling on “reproductive health options.”

Six states enacted measures to continue existing restrictions on state funding of abortion: Colorado, Iowa, Maryland, North Carolina, Texas, and South Carolina.

- Colorado overrode the Governor’s veto of a prohibition on state family planning funds going to organizations that provide abortion services, safeguarding a long-standing pro-life poliy.

- Iowa continues to prohibit public funding of abortion except in cases of life endangerment, rape, incest, or fetal defect.

- Maryland continues to prohibit public funding of abortion, except in cases of life endangerment, rape, incest, serious fetal abnormality, or if the woman’s physical or mental health is at “grave risk.”

- North Carolina continues to prohibit public funding of abortion except in cases of life endangerment, rape, or incest.

- South Carolina enacted a measure to continue restrictions on

state employee insurance coverage for abortion.

- TX enacted a measure strengthening limitations on organizations’ eligibility for state family planning funds. Under the measure, organizations must maintain incorporation, governing structure, and bookkeeping that are separate from abortion providers.

At least 18 states—including Alaska, Kansas, Kentucky, Minnesota, Mississippi, Missouri, New Jersey, New Hampshire, New York, North Dakota, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, and West Virginia—considered measures restricting public funding of abortion and insurance coverage for abortion:

Legislation prohibiting public funding for abortion (including by constitutional amendment) were considered in Kansas, New Jersey, Tennessee, Minnesota, New York, Rhode Island, and West Virginia.

Legislation prohibiting the appropriation of state funds to organizations that provide counseling or referrals for abortion, or that associate with organizations that provide counseling or referrals for abortion, were considered in Kentucky, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, North Dakota, Oklahoma, Rhode Island, and West Virginia.

Legislation prohibiting the use of public facilities (including state university hospitals and clinics), and employees for abortion were considered in Kansas, Rhode Island, and West Virginia. In Kansas, the measure was vetoed.

Legislation restricting insurance coverage for abortion were considered in Alaska, New Jersey, West Virginia, North Carolina, Ohio, Oklahoma, and Pennsylvania.

At least five states considered measures in support of government funding for abortions: Hawaii, Maine, New Jersey, New York, and Rhode Island.

What To Do in 2008

There are many opportunities in 2008 for states to enact common-sense funding limitations and restrictions designed to reduce the number of abortions performed in the state.

In states such as Arizona, Minnesota, and West Virginia, where a court has ordered that state funds be used to pay for all or some so-called “medically necessary” abortions, legislators should begin the process to amend the state constitution to require that public Medicaid funding for abortion be consistent with, and not exceed, the federal Hyde Amendment.

In the majority of states that do not currently have limitations on the use of public funds for abortion counseling and/or referral, such limitations should be enacted, along with limitations on the use of public funding to purchase insurance policies that cover abortion.

Finally, the states that do not currently limit the use of public facilities for the performance of abortions should propose and debate such limitations.

Endnotes

¹ Hyde Amendment to the Medicaid Act, Title XIX of the Social Security Act (1976).

² Harris v. McRae, 448 U.S. 297 (1980).