Threading the Abortion Needle

It belabors the obvious to say that battles over the seemingly incommensurable values at issue in debates over abortion have distorted American politics for decades. Having the issue of abortion surface as a potential spoiler during the final months of Congress’ consideration of PPACA was no surprise. For me, it brought back memories of hours trying to fashion compromise language in 1994, when I was Deputy General Counsel at HHS in the Clinton administration. Because the Clinton health reform proposal failed before reaching the homestretch, the background staff work on abortion (specifically, how insurance coverage of it might be included through regional alliances, the rough equivalent of today’s exchanges) never faced the acid test of negotiations with members of Congress and the full range of lobbyists. To me, it’s a marker of the depth of our social stalemate over abortion that I doubt that the final resolution of that issue 16 years ago would have been substantially different from the compromise embedded in PPACA.

With regard to future access to the full range of reproductive health care services, the biggest unknown lies neither in what the health reform law prohibits nor in what it requires, but in what changes of conduct it will indirectly produce.

• Will women affected by the new restrictions take the additional steps necessary to purchase coverage for abortion?
• Will insurers offer such coverage, despite the headaches of complying with additional procedures and paperwork?
• Will the need to specifically request abortion coverage generate intra-family disputes and, if so, will the new law in effect create a veto power by some family members over others?
• Will courts rule, as Professor Marci Hamilton of Cardozo Law School has suggested,^[1] that any or all of these impediments amount to an undue burden on a constitutionally protected right?

I will make only one prediction: the fight over abortion and health reform is not over.