The historic health care reform law passed in 2010 has the potential to dramatically increase the number of Americans able to access health care. Health care reform is projected to result in health care coverage for thirty million Americans who are currently un-insured. While increasing health coverage is a good thing, health care reform will also dramatically increase the impact that the government will have on the provision of health care. The law achieves broader health care coverage by increasing the number of people covered by Medicaid and creating state insurance exchanges that allow individuals to buy health insurance with premium and cost-sharing credits. The federal government will set minimum requirements for policies sold on the exchanges, and state governments will have significant power to dictate policy requirements and exclusions. This expansion of government influence over health care can be dangerous if government policies are driven by politics instead of medicine and if no legal or political constraints are imposed to protect individual rights. Nowhere is this danger more pronounced than government policies around reproductive health and abortion. Since the 1980 case Harris v. McRae, the Supreme Court has held that it is constitutional for the federal government to use its reimbursement of health care services to dissuade women who rely on government health services from having abortions. Under the federal Hyde Amendment, Congress has prohibited the use of federal Medicaid funds to pay for abortion care even where a woman requires an abortion for health reasons since 1976. Over the past thirty years, similar restrictions have been imposed on other groups that rely on the federal government for health care, including federal employees and military personnel and their dependents, Native Americans who rely on the Indian Health Services for medical care, Peace Corps volunteers, adolescents covered by the Children’s Health Insurance Program (“CHIP”), and women in prison. The Supreme Court also expanded Harris to federal funding in other contexts, upholding laws prohibiting the use of public health facilities or employees in the provision of abortion services and restrictions prohibiting recipients of federal family planning funds from providing counseling or referrals for abortion. During the 2009 debates around health care reform, anti-choice legislators sought to use health care reform to expand the reach of abortion funding restrictions even further by arguing that because some policies offered on the new state insurance exchanges would receive government subsidies, the federal “policy” prohibiting public abortion funding required that exchange policies ban abortion coverage. Rather than questioning the underlying logic of prohibiting federal health care funding for medically necessary abortions, President Obama and supporters of health care reform accepted the Hyde Amendment as the starting point for the debate. In the end, Congressional Democrats brokered a compromise to defeat proposals to ban exchange polices from covering abortion by creating a complicated accounting procedure to segregate federal subsidies from individual premiums and to only use funds derived from individual premiums “to pay for” abortion care. However, the political debate took its toll. Now, as we wait for the implementation of health care reform, we are poised to see the Hyde Amendment’s impact dramatically expand. Ironically, the historic extension of health care coverage is likely to result in the largest expansion of abortion funding restrictions since the Amendment went into effect in 1977. In addition to dramatically increasing the number of women covered by Medicaid, we are seeing state legislative attempts to force the same coverage restrictions upon women who buy their own health insurance on the private market or though the new health care exchanges. These measures were explicitly sanctioned and indirectly encouraged by federal health care reform. The health care reform legislation provides that states may prohibit abortion coverage in the policies offered on their insurance exchanges. Even though the exchanges do not go into effect until 2014, over a third of states have already passed laws to ban abortion coverage on their exchanges. Further by incorporating requirements that segregate federal funds so that they are not mixed with insurance premiums that are used to pay for abortion services, the health reform law has encouraged the idea that those who pay insurance premiums should have the right to dictate how insurance companies use the money paid to them. Several states have taken this to the extreme by passing bans on private insurance coverage for abortion care irrespective of whether policies are sold on the exchange arguing that individual insurance buyers may not want their premiums used to pay for abortions. States have also sought to use the withdrawal of funding to punish health care providers associated with abortion by adopting measures to cut Planned Parenthood funding. While opponents of health care might argue that this type of overreaching is precisely why government should not be involved in the provision health care coverage, the proper response is not to double-down on a negative rights paradigm that only protects women’s right to be free from undue government interference. Instead, I argue that the Supreme Court made a wrong turn in 1980 when it held that the government could use its funding of health care services for the poor to further an anti-choice agenda based on a formalistic distinction between government imposed obstacles and government exercise of its discretion to make funding choices to further its policy objectives. In the wake of Harris v. McRae, progressive scholars and reproductive justice activists articulated the need for an affirmative concept of reproductive autonomy, which requires that government policies and programs actively support rather than undermine the exercise of fundamental rights. Although Supreme Court decisions post-Harris have only reinforced the concept of reproductive freedom as a negative right, the concept that privacy and autonomy rights include affirmative government obligations has found support in international human rights law and in the decisions of high courts in other countries. Further, as illustrated by state court cases holding that abortion funding restrictions violate fundamental rights protect by state constitutions, there is substantial support for construing a negative privacy right to prohibit discriminatory government benefit programs that seek to coerce women’s constitutional choices. The first part of this article examines critiques of the development of reproductive autonomy as a negative privacy right and arguments made by progressive scholars and the reproductive justice movement to adopt an affirmative right to reproductive autonomy. The second part looks at the Supreme Court’s abortion funding cases from 1977-1980 and a related set of cases concerning prohibitions on the use of public medical facilities or staff to perform abortions and the prohibition of federal funding to organizations that provide or refer women to doctors or organizations that provide abortion services. These decisions allowed the federal and state governments to use their funding programs to impose substantial obstacles in the path of women seeking access to abortion care. The third part examines how the Hyde Amendment restrictions have been expanded by recent laws banning insurance coverage for abortion care on state insurance exchanges and in the private market and funding restrictions targeting Planned Parenthood. The fourth part of this article looks at alternative ways of analyzing public and private health insurance restrictions on abortion coverage by considering state court cases, international law and the decisions of high courts in Canada, Colombia and Nepal
