Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional

Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional
By Marci A. Hamilton | Find Law

The United States Conference of Catholic Bishops registered a major victory this week, when it succeeded in pressuring members of the House to include in the healthcare reform bill the so-called "Stupak Amendment." The Amendment is a provision that carves out new territory for those organizations and persons who oppose abortion -- virtually all of whom are religiously-motivated. It does so by forbidding federal funds from being applied to abortions in any instance, including when those funds are being used to subsidize the purchase by low- or middle-income individuals of private insurance on the open market. Under the Stupak Amendment, federal funds cannot be used to pay for "any part" of an insurance plan that would fund abortions.

Before the Stupak Amendment was added, the bill had already included a compromise provision that grandfathered in the approach taken by a prior federal law that sharply restricts funding for abortions. That law, known as the Hyde Amendment, has forbidden federal spending by Medicaid on non-therapeutic abortions since 1976. There have been times in recent history when no abortions could be federally-funded, but at this point a few circumstances permit federal funding, including a pregnancy deriving from incest or rape, or a threat to the life of the pregnant woman. Despite its burden on women's rights, the Hyde Amendment has been upheld in a series of Supreme Court cases, including Maher v. Roe.

The Health Care Reform Act in the House had included a compromise provision that recognized the Hyde Amendment principle, but did not extend the prohibition to the funding of abortions through private insurance plans. Read more.