Richard Epstein Discusses the Stupak Amendment

Should The Government Fund Abortions?
Richard A. Epstein
November 17, 2009

The now out-of-control debate about major health care reform has hit yet another speed bump over whether participants in the subsidized public option may receive coverage for abortions under the sadly misnamed Affordable Health Care for America Act, which squeaked by in the House.

The Stupak-Pitts Amendment blocks abortion coverage for women who purchase subsidized insurance on the public exchange. Pro-life groups have eagerly embraced an amendment that pro-choice supporters of health care have viscerally deplored. It doesn't help calm nerves on the political left to know that House Speaker Nancy Pelosi accepted it solely to get the five votes needed to pass the bill. Rachel Maddow has announced that the amendment is "the biggest restriction on abortion rights in a generation."

Unfortunately, Maddow's denunciation misses the boat, because the amendment only keeps the status quo that has been in effect since the so-called 1976 Hyde Amendment prevented the public funding of abortions, even as it funded other forms of prenatal care. To understand why, it is necessary to trace the evolution of abortion law since the Supreme Court's 1973 decision in Roe v. Wade. Under Roe, what had been a criminal law offense under state law became overnight a constitutional entitlement protected by federal law. Roe's bold move prohibited any state from criminalizing abortions until the fetus becomes viable, which takes place well after the first trimester. To this day, no one quite knows which provision of the Constitution, if any, justified the outcome.

Given the sudden change in the legal landscape, Roe was commonly criticized by judicial conservatives as a regrettable return to the freewheeling substantive due process era highlighted by the Court's 1905 decision in Lochner v. New York, which invalidated a state maximum hour law that Progressive forces at the time ardently embraced. If the Constitution did not speak to wage and hour laws, how could it speak to abortion?

Richard A. Epstein