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“Opting Out”: States Take Charge on Taxpayer Funding for Abortion

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In January, the Senate voted against H.R. 2 (repealing Obama’s health care law) and then in April voted down two resolutions that would have prohibited taxpayer funding for abortion – one blocking taxpayer funds to Planned Parenthood and another prohibiting funds for abortion under the health care law. In the wake of these Senate votes, state legislatures are taking control over abortion funding in their own states by enacting “opt-out” legislation and other similar laws.

As recent polls have shown, over 70% of Americans oppose taxpayer funding for abortion and abortion coverage.  The failure of Congress to pass laws that reflect the views and values of the American people has prompted state legislatures to pass their own laws prohibiting taxpayer funding for abortion.

“Opt out” legislation will prohibit the use of federal funds for abortion coverage under the soon-to-be implemented health care law’s state insurance exchange, with an exception for cases in which the life of the mother is in danger.  At least 11 states have enacted opt out laws.  In late 2010, while debates were taking place in Congress on federal abortion funding, Arizona, Louisiana, Mississippi, Missouri, Tennessee and Utah enacted opt out legislation.  In 2011, after Congress’ failure in January to repeal the health care law, five more states passed opt out laws: Idaho, Indiana, Kansas, Nebraska, and Virginia.

The Indiana and Kansas laws, both enacted in May, ban taxpayer funding for abortion in two ways:  (1) by opting out of taxpayer-funded abortion coverage under Obama’s health care exchange; and (2) by prohibiting businesses that perform abortions (including Planned Parenthood) from receiving Medicaid state-directed funds.  In Indiana, this new law cuts off $2-3 million in state funding from abortion businesses.  These laws give priority to facilities that provide necessary health care (such as mammograms, pap tests, treatment for sexually transmitted disease, and prenatal care), rather than elective abortions.  Funding will be restored to facilities that discontinue the provision of elective abortion.

A few hours after the Indiana law was signed, Planned Parenthood filed a lawsuit challenging the constitutionality of the law and requesting a motion for the law to be enjoined.  The State of Indiana is fighting back, and has filed a memorandum opposing Planned Parenthood’s motion for an injunction.  U.S. District Court Judge Tanya Walton Pratt has thus far declined to issue the injunction.

The Obama Administration has also come forward in opposition to the Indiana law.  Yesterday, Health and Human Services Medicaid Administrator Donald M. Berwick sent a letter to Indiana Medicaid director Patricia Cassanova rejecting Indiana’s new law.  Berwick’s letter states: “Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider’s scope of practice.”  Indiana state officials have publicly declared their opposition to the Obama Administration’s decision and have announced that Indiana will continue to implement and defend the law.  State officials have countered the HHS letter by pointing out that Indiana has the constitutional right to determine how it manages its Medicaid program and selects its partners.  Indiana state Sen. Scott Schneider has stated that Indiana is “on solid legal ground” and that it up to the Obama Administration “to prove that this is not legal.”

Indiana is not the only place where newly-enacted bans on government-funded abortion are under attack.  In May, the Tennessee legislature unanimously approved a state budget amendment requiring federal Title X family planning funds in Tennessee to be directed only to local, county or municipal health departments and prohibiting the disbursement of such funds (amounting to around $1.2 million) to private non-profits.  This would disqualify abortion practices such as Planned Parenthood from receiving such funds.  Unfortunately, the Tennessee legislature discovered that the approved version of the measure was sabotaged to include an overturned amendment allowing funding to continue to flow to Planned Parenthood.  A line item veto is now being considered.

On the other hand, laws cutting off funding to abortion providers have been successfully passed without significant opposition in other states.  For example, in Wisconsin, the state Joint Finance Committee recently voted 12-4 to adopt a budget motion directing state and federal Title V Maternal and Child Health family planning funds only to organizations and agencies in Wisconsin that do not provide abortions or abortion referrals.  This motion effectively cuts off taxpayer funding to abortion providers such as Planned Parenthood.

Opt out legislation is currently in the pipeline in other states.  Last week, the Alabama Senate approved opt out legislation.  South Carolina and Wisconsin legislatures have also introduced opt out bills.  Meanwhile, opt out laws have been vetoed in Florida and Oklahoma, and on May 25, a bill prohibiting taxpayer funding of abortion in Minnesota was vetoed by the governor after passing strongly through the legislature.

It is important to remember that restrictions on government-funded abortion are not new.  Many states have had laws on the books for years limiting state funding for abortion.  On the Congressional level, the Hyde Amendment (an appropriations rider that must be re-approved every year) and other laws have prohibited certain federal funds from being used for abortion.  However, the new national health care law has endangered the application of these laws, and has also increased public awareness of the need for comprehensive bans on state-funded abortion.

Congressional efforts to enact total bans on government-funded abortion and abortion coverage continue, but are bound to be defeated in the Senate or else be vetoed by President Obama.  For example, on May 4, the House of Representatives passed Congressman Chris Smith’s “No Taxpayer Funding of Abortion Act” (H.R. 3) by a heavily partisan 251-175 vote.  The bill would codify the Hyde Amendment and apply the Hyde Amendment to Obama’s health care law.  It would also provide conscience protections for health care professionals.  However, the White House has already declared that President Obama will veto the measure if it ever arrives at the President’s desk.

The conflict between pro-life and pro-abortion advocates over taxpayer funding for abortion is now taking place primarily in the state legislatures.  This is where we can expect to see legal action that will effectively stop or reduce government-funded abortion.  Although states such as Indiana are facing vehement opposition from pro-abortion advocates on this issue, the states in general (in comparison to Congress) have made significant progress in enacting laws that reflect the view of the majority of Americans against tax-payer funded abortion.

In conclusion, although proposed legislation to de-fund the abortion business and ban taxpayer funding of abortion have failed to pass through Congress, those efforts have been extremely successful in drawing America’s attention to the issue and in spurring the states to enact opt out legislation and other laws against government-funded abortion.

(c) 2011 Culture of Life Foundation.  Repruduction granted with attribution.