The XX Factor

Obama’s Executive Order on Abortion

In the end, after all the posturing and breast-beating and fighting over abortion and health care reform, we’ve come back full circle to the Hyde Amendment. That would be the same old familiar old restriction on federal funding for abortion Congress passed in 1976. The executive order President Obama will sign today reaffirms that the Hyde Amendment applies after health care reform to the new world of the health insurance exchanges. We knew this already, but hey, the president is saying it again so Rep. Bart Stupak and his band of holdouts have cover to vote for the bill.

The Hyde Amendment states that federal Medicaid funds will not be used for abortion except in the case of rape or incest or to save the life of the mother. The Supreme Court upheld the ban as constitutional in 1980, saying in Harris v. McRae that the states didn’t have to provide Medicaid funds for medically necessary abortions for pooor women. Since then, 17 states have come around to using their own Medicaid money to fund abortion for low-income women beyond the narrow categories that the Hyde Amendment allows, 13 of them because their own courts ordered them to provide this access.

Obama’s executive order changes none of that. As the president and Nancy Pelosi always said the health care bill would, the order states that “The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.” (These exchanges are for people who don’t have incomes low enough to qualify for Medicaid but also don’t have insurance through their employers.) There is language in the White House message atop the order, from White House communications director Dan Pfeiffer, about how the executive order provides “additional safeguards to ensure that the status quo is upheld and enforced.” But this is just face-saving language for Stupak and his band. Additional safeguards to enforce the status quo are about enforcing the status quo. The lesson, if there is one: Health care reform was never about loosening the restrictions on federal funding for abortion, and the Stupak amendment was always about tightening them.

What does the executive order actually do? It takes the Hyde Amendment rules and applies them to the new exchanges and to community health centers that receive federal funding. The president directs OMB and HHS “to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements.” The timeline is a little silly, since the insurance exchanges don’t go into effect until 2014. But all this means is that the relevant government agencies will make sure that any insurance policies in the exchanges that offer abortion segregate the federal funds they include from the funds that pay for the abortion. This is so cumbersome that there may be precious few such abortion-covering policies in the exchanges. As Ruth Marcus wrote last week, “the hurdles to offering separate abortion coverage are high enough that few if any insurers are likely to do so .”

The part of the executive order about community health centers point out that they also already cannot use federal funds for abortion and promises that they won’t be able to use federal money funnelled to them from the new health care bill for abortion, either. Unless I am missing something, this is more of the old. New source of money, same set of restrictions. The main thing at the moment is that in the exchanges and the health centers, any amount of federal funding doesn’t negate the possiblility of paying for coverage of abortions via some other source. For that, credit goes to Nancy Pelosi and pro-choice House members like Colorado Democrat Diana DeGette. They held the line.

ADDENDUM: The National Organization for Women is mad about the executive order . NOW calls the Hyde Amendment “an illegitimate tack-on to an annual must-pass appropriations bill.” It’s true that Hyde has passed each year as a rider, so it’s not a permanent standalone law. But health care reform was never going to spell its end. NOW’s anger makes sense as a reminder to the president not to take the pro-choice side for granted. It also gives more cover to the pro-life Democrats voting for the bill.

Photograph of Rep. Bart Stupak by Nicholas Kamm/AFP/Getty Images.