The impact of restricting Medicaid financing for abortion.

On February 19, 1980, the Department of Health, Education, and Welfare (now the Department of Health and Human Services) again began paying for medically necessary abortions for women eligible for Medicaid, the program under which the federal and state governments share the cost of necessary medical care for indigent Americans, most of them public welfare recipients. For two and one-half years, federal Medicaid funds had not been available except under extremely restrictive conditions. On January 15, Federal District Court Judge John Francis Dooling, Jr., ruled that Congressional restrictions on Medicaid payments for medically necessary abortions were unconstitutional, and ordered DHEW to resume payments. The Department began to do so after the U.S. Supreme Court refused to stay Judge Dooling's order pending its own decision (expected in June) as to the constitutionality of the restrictions.

At the time of Judge Dooling's decision, nine states and the District of Columbia were voluntarily paying for medically necessary abortions for Medicaid-eligible women, and 13 states had been ordered to do so by the courts. Most of the remaining 27 states (one, Arizona, does not participate in the Medicaid program) agreed to resume funding pending the Supreme Court's decision after DHEW informed them that refusal to pay could put in jeopardy their eligibility for any federal participation in their Medicaid program.

The Congressional restrictions, first passed in 1976, were in the form of amendments to the annual appropriations bills for the Departments of Labor and HEW. Commonly known as the Hyde Amendment after their 1976 sponsor, Rep. Henry J. Hyde (R.-Ill.), the amendments took various forms. The first, and most restrictive, confined abortions covered under Medicaid to those that threatened the life of the pregnant woman. In 1977 and 1978, Congress added promptly reported rape and incest and severe and long-lasting physical health damage (confirmed by two physicians) to the permissible conditions; in 1979, the latter condition was removed. According to an Alan Guttmacher Institute (AGI) survey, 295,000 poor women obtained abortions paid for by Medicaid in fiscal 1977 (1) (the year before the Hyde Amendment actually began to be enforced (*)); the number paid for under the federal Medicaid program dwindled to about 2,000 the following year. Because some states chose to continue paying for abortions to Medicaid-eligibl e women from their own funds, and others were ordered by the courts to do so, the AGI estimates that some 194,000 indigent women (about two-thirds of the 295,000 that obtained Medicaid-funded abortions in fiscal 1977) actually obtained publicly financed abortions in fiscal 1978, the first year in which the restrictions were enforced. (2) It should be noted that prior to enforcement of the Hyde Amendment restrictions, some 133,000 Medicaid-eligible women estimated by the AGI to be in need of abortion services were unable to obtain them under the federal-state program; in six states, Medicaid did not pay for any abortions to indigent women. (+) With the imposition of the funding restrictions, the estimated unmet need for Medicaid-funded abortions rose between 1977 and 1978 from 133,000 to about 234,000. (3)

The Hyde Amendment and its successors affected only abortions funded under Medicaid and other DHEW programs, such as those that had been provided in community health centers. However, Congress subsequently passed similar restrictions affecting several other government programs including legal services, and health programs for the Peace Corps and members of the armed services and their dependents. It also prohibited the Civil Rights Commission from carrying out investigations as to whether these actions violated Americans' civil rights. These other congressional restrictions are unaffected by Judge Dooling's decision.

It might seem remarkable that in 1976, Congress passed the Hyde Amendment without establishing any mechanism for examining the human consequences of its action or knowing even bow many women would be affected, since no one had determined at that time just how many abortions had been publicly funded. The decision to single out abortion, however, as the one medical procedure to be denied to indigent women without regard to the social or economic consequences is not surprising, since the abortion debate in Congress had been waged on ideological, ethical and religious grounds. Each side in the debate held a different set of assumptions, and rational argument was singularly lacking.

The purpose of the legislation, as Judge Dooling noted in his January 15 decision, was to prevent as many abortions as possible. Its proponents wanted a constitutional amendment to prohibit all abortions. Frustrated in this effort, abortion opponents in the House each year succeeded in holding up the DHEW-Labor appropriations until the Senate agreed to exclude virtually all abortions from the otherwise comprehensive surgical services paid for under the Medicaid program. (The Senate wanted to exclude only those abortions that were not medically necessary, a provision that would have been clearly consitutional under a 1977 Supreme Court ruling. (*)) The position of the antiabortion forces was summed up by the Hyde Amendment's original sponsor, Representative Hyde, who declared, "I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middleclass woman, or a poor woman. Unfortunately, the only vehicle available is the HEW Medicaid bill. A life is a life." (4)

The only analogous situation that might have informed Congress about the possible consequences of enacting the Hyde Amendment was that in Romania, where a restrictive abortion law was passed in 1966, following many years during which abortion was legal and widely used as the main method of birth control. The most immediate results were a rapid and large increase in the birthrate, and in the rates of morbidity and mortality among women who had clandestine abortions. (5) Ten years later, the birthrate remained one-third higher than its 1966 level. (6) One could not expect the effects of the Hyde Amendment, however, to be as visible in the United States, for several reasons. Only public funding of abortions was affected; the great majority of abortions were paid for privately. Abortion in the United States is used primarily to back up effective contraceptive use; in Romania, by contrast, abortion was the main method of birth control. Finally, many states continued to pay for abortions for indigent women, either voluntarily or under court order.