How to Protect Access to Reproductive Health Care with Only 50 Votes in the Senate

 by Ronald Krotoszynski

As the initial shock of the Supreme Court’s Dobbs decision, which overturns Roe and denies women across the U.S. control over their own bodies, begins to fade, a pressing question demands to be asked and answered: What, if anything, can the political branches of the federal government now do to make reproductive health care available to all American women?

Everyone seems to assume that any legislation restoring meaningful access to reproductive health care-- “codifying Roe” -- would require 60 votes in the Senate.  GOP Leader Mitch McConnell has mused that “In the Senate, most things require 60 votes. Neither side of this issue has come anywhere close to having 60 votes.”  

President Biden and the Democratic leadership of Congress disagree with McConnell about many things -- but not on this question.  Their answer?  An executive order directing federal agencies to identify “potential” ways to ensure access to medication abortion and emergency contraception – as well as anodyne pleas for Democratic voters to turn out in November.  However, no serious person believes that the Democratic caucus will number 60 members on January 4, 2023 -- and it’s equally open to doubt whether the Democratic caucus will increase sufficiently to make meaningful filibuster reform a realistic path forward.  It also seems likely, if current polling remains unchanged by November, that the Democrats will lose control of the U.S. House to the GOP -- at which point having 60 votes in the Senate would not matter.

What’s more, an obvious and serious objection exists to doing nothing for the present and hoping and praying for a good result in the midterms.  In the meantime, literally thousands of women will be forced into pregnancy.  Some of them will be forced into pregnancy even if carrying a fetus to term presents serious, long-term, health risks -- such as kidney damage that would require a lifetime of dialysis.

Most states with abortion bans ban not only elective but also therapeutic, meaning medically necessary, abortions.  For example, Kentucky, Missouri, and Texas permit a lawful abortion only to save the life of the mother or if continuing the pregnancy presents a serious risk of death; Arkansas, Oklahoma, and South Dakota do not provide an exemption for a serious health complication -- only for a probability of death.   Worse still, Ohio law currently bans all abortions -- including those necessary to preserve a woman’s life or health -- after six weeks.   Virtually none of these bans contain exemptions in cases of rape or incest. Finally, none of these laws credit the mental health of a pregnant woman as a basis for obtaining a lawful abortion.

Given the scope and breadth of these laws, women in over a half dozen states, and growing, will no longer be able to obtain medically necessary health care -- even though, in these very same states, men will remain free to seek and obtain any and all medically necessary procedures.  It’s unthinkable that Arkansas or Ohio would prohibit men with prostate cancer from seeking and obtaining medically necessary treatment.

Even if a person opposes elective abortions, forcing a woman to die to maintain a pregnancy imposes a burden fundamentally inconsistent with the Anglo-American common law tradition, which generally abjures imposing duties of care even when a person could render life-saving or life-enhancing assistance with far less effort than nine months of pregnancy entails.  Simply put, our common law tradition privileges rational self-regard over legally imposed altruism.  It's also deeply problematic to force women, but not men, to incur serious health risks that do not rise to the level of death -- even if one takes the view that two lives, rather than one, are at issue in the context of abortion.

Meanwhile, the federal government will continue to spend billions annually to subsidize health care systems in these states -- systems that now deny women, but not men, access to medically necessary treatment (namely, therapeutic abortions).  These funds flow through Medicaid (which facilitates access to medically necessary services for the indigent), Medicare (which funds medically necessary care for the elderly), and scores of other federal programs, such as grants from the NIH and CDC, that all subsidize the provision of state health care systems.

Just as Title IX prohibits the use of federal funds to subsidize colleges and universities that discriminate against women, federal funds should not subsidize health care systems in states where women do not have the same access to medically necessary treatments as men.  The flow of federal dollars to states that prevent women from accessing medically necessary care should be reduced -- if not cut off -- unless and until women enjoy the same access to medically necessary services as do men.

A rule requiring that all persons within a state enjoy the same access to medically necessary services, as a condition of a state government receiving a full share of its federal health subsidies, would have a clear budgetary effect -- it would reduce such outlays.  Under the reconciliation process, the Senate may pass a law that has a clear budgetary effect with only 50 votes; the filibuster rule requiring 60 votes would not apply.

What’s more, reconciliation was precisely how President Barack Obama and the Democratic Party congressional leadership enacted the Affordable Care Act (ACA) in 2010.  As originally written, the ACA presented state governments with a very stark choice:  Expand access to Medicaid to include all persons and families making 137% of the annual poverty rate income within the state or lose all federal Medicaid funds going forward.

Congress was willing to play constitutional hardball with the states to expand access to health care in 2010.  It should be no less reticent to play constitutional hardball to restore women’s right to medically necessary medical care in 2022.  And Congress could enact a law conditioning federal health care funds on universal access to medically necessary services with only 50 votes in the Senate -- which the Democratic caucus, presumably augmented by GOP Senators Susan Collins and Lisa Murkowski -- should be able to muster.

It's certainly true that the Senate Parliamentarian ruled that reconciliation could not be used to codify DACA because the budgetary impact of the proposed reforms in federal immigration laws was only indirect.  Here, by way of contrast, the budgetary impact would be direct -- namely cuts in federal outlays to states that deny women access to medically necessary health care services.   And if modifying the rules governing eligibility for Medicaid was consistent with the Byrd Rule that limits reconciliation to matters with a budgetary or fiscal impact, a requirement that a state receiving federal funds for medically necessary services not impede access to any and all medically necessary services should be too.

At the very least, what would it hurt to draft the legislation and put the question to the Senate’s Parliamentarian?

What's more, for many indigent women living in states with flat abortion bans, the ability to obtain an abortion in a far-distant state will be effectively meaningless.  If you lack the funds or the ability to travel from Alabama or Mississippi to California or New York, the ready availability of reproductive health care in those states is a mirage.  Accordingly, poor women living in red states will be forced into pregnancy.  And, if they have medical reasons for an abortion, they will be forced to shoulder any and all of those health risks.

To be sure, some applicable constitutional constraints on conditional spending exist and Congress would need to take careful account of them to avoid having the Supreme Court invalidate its legislative handiwork.  The Supreme Court, ostensibly enforcing the Tenth Amendment, adopted rules that limit Congress’s use of conditional spending to protect the state from being “commandeered.”  It would be prudent, indeed essential, to narrowly tailor the penalty for non-compliance to avoid constitutional problems.

For example, in NFIB v. Sebelius, decided in 2012, the Supreme Court held, 7-2, that forcing states to expand Medicaid coverage, under the ACA, or lose all such federal funds, was unduly “coercive” of state governments.  To avoid this problem, the Supreme Court re-wrote the ACA to give states a free choice to keep old Medicaid or sign on to the new-and-improved ACA version with expanded eligibility. 

A significant cut to federal medical care subsidies, say 15% to 25%, would avoid running afoul of the rule against “coercing” states through conditional spending.  The law would meet the other requirements of South Dakota v. Dole, the 1987 case that set forth the governing rules for conditional spending:  the condition would relate to the purpose of the federal expenditures, the condition would be unambiguous, and states would have a free choice to deny some citizens (namely women) access to medically necessary services and lose federal funds or to adopt non-discriminatory laws and, in consequence, enjoy an uninterrupted flow of federal health care dollars.

To be sure, more than a few red states might be indifferent to cuts in Medicaid spending (which provides health care access for the poor) only but they would surely not be indifferent to cuts in Medicare funding (which provides health care for the elderly).  Unlike Medicaid, which the states administer, the federal government directly administers Medicare, but red no less than blue states feel its impact. Hospitals in red and blue states alike are heavily dependent on the federal government’s funding of health care.  These subsidies help to support access to health care services for all by providing minimum levels of financial support for the health care sector within all 50 states. 

Of course, Congress would have to be very specific about the exact conditions necessary to avoid the cuts to federal dollars flowing to the states.  Conditional spending, to be constitutional, must lay out a clear and unambiguous choice.   

It bears noting that it would be up to Congress -- not anti-abortion state governments -- to decide the precise scope of the medical necessity exemption.  If a state government enacted a bad faith, half-measure that only partially restored access to therapeutic abortions, it would still incur the spending cuts.  Health care providers in those states would take a very dim view of such a result -- and lobby the state government to revise the state's laws to comply in good faith with the federal government's conditional spending requirement.  

As for enforcement?  The condition on receipt of federal funds would be enforced by the Department of Health and Human Services (HHS) -- not the state governments or the federal courts.  Accordingly, if HHS Secretary Xavier Becerra deemed a state to be out of compliance with the conditions on receipt of federal funds for these programs, the funding cuts would kick in and state health care systems would feel the pinch.

Would a rule securing access only to medically necessary abortions make much of a difference?  To be sure, most reproductive rights advocates support a general right of access to abortion -- not a limited right to access only therapeutic abortions.  But, if broadly crafted, a requirement that states permit medically necessary abortions, to prevent adverse physical or mental health consequences, could restore access to reproductive health care quite broadly.

In the contemporary U.K., abortion is theoretically unlawful unless necessary to protect the health of the woman seeking the procedure.  Health, however, includes mental health -- as ascertained by a care provider.  Under the U.K.'s current law on abortion, two medical professionals must agree that a pregnancy presents a greater risk to a woman's physical and/or mental health than carrying the fetus to term in order for an abortion to be lawfully available.  Despite limiting access to abortion to therapeutic abortions, most commentators view the U.K. as providing women with broad and effective access to reproductive health care.

Accordingly, the medical necessity exception, at least in the U.K., effectively creates abortion on demand for the first 24 weeks of pregnancy.  Congress should borrow the U.K.'s approach to defining "medically necessary" and include access to safeguard both a woman’s physical and mental health in the funding conditions.  If the risk of continuing a pregnancy is greater than terminating it to either a woman’s physical or mental health, the abortion she seeks is medically necessary and the abortion must be lawful.

In an ideal world, women would have access to reproductive health care services without limitation or condition.  But Roe is now a constitutional dead letter and the regular legislative process, which would have to be used to create a right to reproductive health care via Commerce Clause legislation, would require 60 votes in the Senate to overcome a certain filibuster.  The Biden Administration and congressional leadership must ask themselves whether holding out a hollow hope for a broad and deep statutory right to reproductive self-determination should be preferred to enacting, right now, a narrower rule that mandates access for therapeutic reasons and couples it with federal subsidies to facilitate out-of-state access to abortion services for women in states that ban elective abortions.

When a fundamental right, like access to health care, is on the line, we should embrace imperfect solutions over doing nothing.

To move toward universal health care coverage in 2010, Congress was prepared to gamble that some states would forfeit healthcare coverage for the working poor and risk the collapse of the local health care delivery system.  Access to medically necessary services, for all people, without regard to sex, is a principle that Congress should be willing to endorse as a condition of receiving these federal funds.  And be willing to play constitutional hardball to safeguard. 

Of course, a real risk would arise from this approach:  A committed anti-abortion state legislature could choose to absorb the cuts, and concomitant loss of health care services, rather than change its law to provide access to all medically necessary procedures (including abortion).  But, again, Congress embraced this very same risk in 2010 and President Obama, then-Vice-President Biden, Speaker Pelosi, and Majority Leader Reid all publicly celebrated the passage and signing of the bill -- including its gamble with indigent people’s access to medically necessary health care services.

Broad discussions are underway about the possibility of providing federal subsidies to permit indigent women in states with abortion bans to seek reproductive care out-of-state.  This won’t be possible without 60 votes in the Senate either -- current federal law, namely the Hyde Amendment, strictly prohibits the use of any federal funds to provide abortion services.  Since 1976, the annual federal budget has included a rider that proscribes the use of federal funds to subsidize access to abortion; the current version of the Hyde Amendment, which strictly speaking isn’t part of the U.S. Code, bars all such funding save in cases of rape, incest, or to save the life of the woman.  60 votes do not exist in the Senate for repealing the Hyde Amendment -- but it would be possible to use the reconciliation process, and 50 votes in the Senate, to repeal it and concurrently authorize federal subsidies for access to reproductive health care services for indigent women in states with bans on elective abortions.  Indeed, reconciliation presents the only plausible legislative path to creating such a subsidy program with only 50 votes in the Senate. 

If President Biden, Vice-President Harris, and congressional Democrats are serious about safeguarding reproductive freedom on a nation-wide basis, they should stop talking and start legislating.  Democrats should use the reconciliation process -- and they should use it now.