Did Democrats learn a lesson about attacking the Hyde Amendment in 2016? A new press from conservative states to restrict abortion has led at least one Democratic presidential candidate to repeat that strategy. Elizabeth Warren declared today that abortions should get direct federal funding and that Congress should pass “federal statutory rights” to abortion on demand.
You know what would come in handy for that? Medicare for all:
“These extremist Republican lawmakers know what the law is — but they don’t care,” Warren wrote. “They want to turn back the clock, outlaw abortion and deny women access to reproductive health care. And they are hoping the Supreme Court will back their radical play. I’ll be blunt: It just might work.” …
In her plan, Warren said Congress should pass laws that provide statutory guarantees for rights established under Roe, invalidating laws like the one recently passed in Alabama, while also being durable enough to withstand a Supreme Court decision overturning it. Such statutory guarantees, she said, should prohibit states from interfering with both health care providers and patients seeking their care, including for abortions.
She also called further for federal guarantees to “preempt” other state efforts that limit access to reproductive health care without explicitly targeting Roe, and pointed to existing legislation called the Women’s Health Protection Act.
Warren’s proposal would have the federal government guarantee patient access to reproductive health care by undoing the Hyde amendment, a rule preventing federal money from going to abortion services, and by passing a law prohibiting insurers from restricting abortion.
Notably, Warren said “all future health coverage — including Medicare for All — includes contraception and abortion coverage.”
If the bill passed in Alabama is extreme, then this is the extreme reaction to it. Even Vox calls this “aggressive,” a bit of an understatement. It also has no chance of passing in Congress, Anna North admits:
With her statement, Warren joins that group. She calls on Congress to enshrine the right to abortion in federal statute, in case Roe v. Wade is overturned and the current federal right to abortion is taken away. She also calls for a repeal of the Hyde Amendment, which bans federal funding for most abortions, and federal legislation preventing states from passing medically unnecessary restrictions on abortion clinics. And she proposes a reversal of the Trump administration’s domestic gag rule, which bars providers that receive federal family planning funds from performing or referring patients for abortions.
The legislation Warren supports has little chance of passage without a Democratic majority in Congress. But anti-abortion groups in recent years have abandoned an incremental approach in favor of a more aggressive one, and have seen major victories around the country. Now Warren is proposing an equally aggressive response.
The Supreme Court has said in Roe v. Wade and in the 1992 decision Planned Parenthood v. Casey that states cannot ban abortion prior to viability, when a fetus can survive outside the womb. But there’s no federal statute guaranteeing the right to an abortion. That means that if Roe were to fall, the issue would be left up to the states, which could ban abortion as they see fit. Warren wants to change that, as well as passing other federal laws to help protect access to abortion and other reproductive health care.
Neither Roe nor Casey prevented Congress from passing laws legalizing abortion. In fact, abortion opponents would argue that the issue should have been settled in legislatures, either at the federal or state levels, and not by courts finding creative “rights” in emanations and penumbras rather than sticking to the text of the Constitution. Roe and other decisions pre-empted those efforts to legalize abortion through statute, which until now has suited Democrats just fine. They have argued, until now anyway, that legislatures didn’t need to do anything, and that such action would undermine the idea that abortion is a fully developed individual constitutional right absent statutory support.
The fact that Democrats like Warren and Kirsten Gillibrand are now proposing legislative action speaks to their concern that their argument is eroding. The legal certainty of courts upholding Roe and Casey have, certainly. This argument ended up backfiring on Hillary Clinton three years ago, however, especially with the Hyde Amendment and federal subsidies for abortions. While Americans have mixed feelings about abortion, what support it does muster has to do with expectations of privacy and a lack of government interference in personal medical decisions. When it comes to federal subsidies of abortion, the picture changes significantly. A YouGov poll taken during Clinton’s campaign against the Hyde Amendment showed 2:1 support for its restriction on subsidies for abortion, 55/29. The only demo that supported its repeal was Democrats, and then only 44/41.
Tying Medicare for All to free abortions is a mistake an order of magnitude larger. The abortion issue has gone largely unnoticed in the single-payer debate, but Warren’s proposal will put it front and center now. It makes M4A look like a back door to using taxpayer money to fund abortions, which … it is. It might not be the largest or most systemic issue with Medicare for All, but it is emblematic of how a government monopoly on health care will get used to manipulate politics even against the clear will of the electorate. There may not be much crossover between M4A advocates and the pro-life community, but until now there wasn’t much reason for overt hostility, either.
As for me, I’m just waiting for the Democrats pounced headlines over their reaction to Alabama’s bill. They’re coming, right? Right?