Monday, November 09, 2009

Funding Abortions, Wars and Churches

By Mike Dorf

Now that the House has approved the Stupak Amendment--which forbids health insurance plans that will receive federal funding under the reformed American health care system from covering abortions--it's worth reflecting on why, exactly, this sort of legislative provision is considered permissible even by an otherwise (mostly) pro-choice country.  The core of the argument goes like this: The law permits abortion on grounds of personal choice, but many people regard abortion as immoral, and they should not be made to subsidize conduct they regard as immoral.  That is, more or less, the principle on which rest the Supreme Court decisions allowing rather severe restrictions on government funding for abortion.  And it is also the principle one typically hears in public debate.

To be sure, the principle is often invoked by people who would go much further.  Most of the legislators who oppose government funding of abortion would also favor making abortion illegal were constitutional doctrine not (currently) an obstacle to that approach.  Congressman Stupak himself, for example, is "pro-life" rather than "pro-choice-but-anti-subsidization."  But let's put that point aside.  It is possible to think that some activities ought to be a matter of choice but that others shouldn't have to subsidize them.  The government cannot forbid bumper stickers proclaiming that "smoking is cool," but it can choose to subsidize anti-smoking rather than pro-smoking speech. And quite rightly so.

Is selective subsidization a compelling principle of politics more generally?  Maybe not.  Certainly there is no general rule that the government may not spend money on anything that a substantial number of people oppose.  Quakers are required to pay taxes that support wars.  Vegans are required to pay taxes that subsidize factory farming.  And so on.  Of course, in these cases, the majority thinks that the subsidy does not go to immoral activity, regarding wars as (at least sometimes) justified and animal agriculture as morally neutral to beneficial.  In the case of abortion, what does the majority of the House think?  As noted in the previous paragraph, I suspect that most of the House members who voted for the Stupak Amendment think abortion is immoral.  I also suspect that at least some of the supporters think that, whatever the right choice of any particular woman deciding whether to have an abortion, people who are morally opposed to abortion shouldn't have to support it, but because of the impracticality of rebating tax funds to abortion opponents only, the government simply shouldn't subsidize abortion at all.

But if that is the middle ground here--between legal abortion with government funding and illegal abortion--then there is a substantial difficulty: We do not ordinarily regard everything that recipients of public funds do with those funds as implicating the public in their conduct.  The Supreme Court's Establishment Clause jurisprudence is noteworthy in this regard.  Although the government could not appropriate funds directly to subsidize various sectarian activities, in a variety of contexts, the Court has upheld programs that appropriate general funds which individuals can then choose to use for partly religious purposes.  This principle is sound, and was unanimously adopted by liberals and conservatives alike in the Witters case in 1986--holding that there was no Establishment Clause violation when a blind student sought to use vocational services at a sectarian Bible College for ministerial training.  Later cases exposed rifts over the extent and scope of the principle but its core is easy to defend: The student, not the government, directed funds to the Bible College.

Likewise with respect to health care, there would seem to be a substantial difference between, on one hand, direct government funding of stand-alone abortion clinics, and, on the other hand, government's failure to re-write health insurance policies of all persons who receive any government subsidy so as to remove abortion coverage from those policies. The Stupak Amendment takes aim at the latter sort of subsidy.  It treats a private choice to have an abortion that is covered largely out of the woman's premiums to her insurer as implicating all taxpayers, no matter how small the government subsidy is relative to those premiums.  That looks a lot like, to use a much-abused phrase, a government takeover of health care.