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.


The Counterfactualist said...

Is this a libertarian objection to the Stupak Amendment?

Michael C. Dorf said...

AB: Yes, obviously. Are you suggesting that it is somehow logically inconsistent to argue that (1) the libertarian objection to having to buy health insurance or pay a tax is weak, while simultaneously maintaining that (2) it is an unwarranted infringement on liberty for the government effectively to compel thousands of women to remain pregnant and bear children against their will? If so, you are mistaken. One need not be a thoroughgoing libertarian to think that some infringements on liberty are unwarranted. Indeed, that was rather obviously a premise of my earlier posts. If I thought that libertarian objections to restrictions on liberty were always meritless, I would have simply said that, rather than engaging with the substance of the particular objections that had been made to the individual mandate.

The Counterfactualist said...

Prof. Dorf:

I did not intend to imply you have been logically inconsistent. (All your libertarian-centric analysis of the health care debate has been fascinating, illuminating, and refreshing.)

But I am unsure why your analysis of an affirmative duty to use private funds to buy healthcare does not apply to the Stupak amendment. You argued that affirmative duties can be less bad than prohibitions, which are in many cases unobjectionable. The Stupak amendment can be restyled as an affirmative duty to use private funds to finance abortions. What makes the Stupak amendment less warranted than an affirmative duty to use private funds to purchase affordable healthcare if you don't want any?

feri said...

nice article

feri said...

nice article

Michael C. Dorf said...

AB: Ah, now I get it. Let me see whether I can put your point as strongly as possible: The burden of the individual mandate (IM) is at bottom simply a monetary burden; the same is true of the Stupak Amendment (SA). Just as under the IM it's still possible for someone not to get health care if he wants to avoid health care, so under the SA, it's still possible for a woman who wants an abortion to get an abortion--either by paying for one a la carte or by having purchased a supplemental insurance plan in advance.

My objection, of course, is that, at the margin, some women will be unable to afford to pay for such abortions, but then, at the margins some people subject to the IM will be unable to pay for whatever else it is that they need or want (including abortions) in virtue of the fact that they have had to pay a tax or to purchase unwanted health insurance. Stated in that way, the SA does look no worse than the IM.

Nonetheless, I still think it is substantially worse because in the SA Congress has targeted a specific form of liberty--the right to choose whether to have an abortion--for discouragement. By contrast, the IM is neutral with respect to the choices people make--except that it is not neutral with respect to people's choices about whether to have health insurance coverage in the first place. It discourages choices to forego health insurance.

So, to end more or less where I started in my last comment, my argument that the SA is worse than the IM rests on the supposition that it is more intrusive for the government to interfere (through financial incentives and coercion) with the private decision to seek an abortion than to interfere (through financial incentives and coercion) with the private decision to forego health insurance.

Blogger said...

I wonder if it is meaningful in this case to distinguish between targeting a liberty for discouragement and specifying one for non-encouragement.

As I understand it, abortions are not currently federally funded. The Stupak Amendment would maintain the status quo in that regard. It does however, stand as an island of non-encouragement in a sea of health care encouragement.

I take it that the proponents of this view support it by contending that while other coverage is intended to alleviate illness and promote health, funding for abortions is akin to funding elective (non-strictly-health-related) procedures. One reason it would not be covered, then, is precisely because it is personal to the patient and not medically indicated like other interventions.

Thus, they would argue, it does not make sense to argue that the government is "interfering" in a woman's choice to have an abortion because this bill leaves that choice at rest -- precisely as it is now -- with no authority to direct government funds to support it.

Len said...

Maybe this is not an exact analogy but compare the political allignment on the Stupak Amendment to the House health care bill with that from the Franken amendment to the Military spending bill a few weeks ago. In both cases liberals wished to use govenment spending policy to further a political goal, in one case to provide money to health care providers to provide abortions to patients, and in the other case to ensure that women employed by govenment contractors and who were raped on the job would be allowed to sue employers in court and not be forced into arbitration as their only remedy.

The reasons for the Republican opposition to the Franken amendment was not totally clear but my two senators told me they were against it because the feds should not interfere in employer-employer contractual relationships. Conservatives say government should not interfere with private contracts. Except, as you point out here, when it should. I think you are exactly right that there are some medical decisions, especially with regard to reropduction and end of life services, that conservatives feel the government should completly control.

What is really shockiing to me, and what prompetd this post, is that it appears the conservative position with regard to federal funding is rape is OK but abortions are not.

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