ABORTIONS ON MEDICAID?
Drinan, Robert F
THE BARTLETT AMENDMENT ABORTIONS ON MEDIC RID? The United States Senate came one step closer on April 10 to the acceptance of a policy which would re-fuse to condition use of the statutory benefit...
...The basic question centered on whether or not the more than 22 million people eligible for Medicaid bene-fits can have this program reimburse physicians and hospitals for abortions...
...which gave this estimate, however, indicated that the federal government would spend between $450 and $560 million in one year alone if those women who obtained an abortion through Medicaid carried their pregnancies to term and received the usual medical care and welfare payments...
...A woman's decision to terminate her pregnancy by abortion is now, by Supreme Court mandate, a funda-mental constitutional right...
...That amendment proposed that: "No funds authorized under the Social Security Act may be used to pay for or encourage the performance of abortions, except such abortions as are necessary to save the life of a mother...
...It seems to me that, whatever one's view of abortion might be, a law terminating Medicaid benefits for in-digent pregnant women who elect to terminate their pregnancies by abortion cannot be justified by any legal or constitutional norm...
...Three Republican congressmen who regularly brought this issue to the floor of the House in the 93rd Congress were all defeated...
...The defeat of the Bartlett amendment is a reversal for the Senate, which in late 1974 had refused by a vote of 50-34 to table this measure...
...These courts have never said that the federal government has an obligation to finance abor-tions...
...and Senator Garn (R-Utah...
...Senator Hathaway concluded that since the "Bartlett amendment only applies to low-income people, but not to the population at large, it is blatantly discriminatory on economic grounds, and therefore unconstitutional...
...congressman from Massachusetts...
...Bayh (D-Ind...
...Senator Kennedy pointed out perceptively that the proposed amendment is poorly drawn, does not define the word "encourage," and is probably broad enough to prevent Medicaid from fur-nishing IUDs...
...The Senate debate on April 10 will not close the book on the complex question of how Congress will or should react to abortioa The debate raised questions to which no one in the Congress has answers...
...However true or untrue that allegation may be, no one can assert that Catholics in the Congress are united on any legal-moral approach to abortion...
...Some may fear that Catholic citizens in America are seeking to impose their own views of abortion on non-Catholic citizens...
...A study by H.E.W...
...Speaking against the Bartlett amendment, in addition to Kennedy and Hathaway, were Senators Percy (R-Jll...
...Senator James Buckley, a co-sponsor of the Bartlett amendment alleged that 28 percent of all abortions in the year 1974 were paid for by the federal government...
...It is elementary jurispru-dence that the government may not condition the receipt of a statutory benefit upon the forfeiture of a constitu-tional right...
...The Commission simply stated that the no-abortion restriction on Medicaid funds would impact adversely only on low-income women, among whom racial and ethnic minority women are dispro-portionately represented...
...It could be argued that the woman who is denied Medicaid help for an abortion does not forfeit her constitutional right but forfeits only any claim to financial reimbursement for the exercise of that con-stitutional right...
...About the only generalization that can be drawn from the Senate debate on Medicaid and abortions is the fact that there is no such thing as a "Catholic position" on this subject...
...The fifteen Catholics in the Senate divided eight to seven in favor of tabling the matter...
...The discriminatory impact of the Bartlett amendment was pointed out in a report by the U.S...
...Such a com-pelling governmental interest was not demonstrated by the proponents of the Bartlett amendment...
...But the six federal decisions are un-animous in stating that if the federal government pro-vides one, it has to provide the other...
...Senator Bartlett, a Catholic former Governor of Oklahoma, was opposed by Senator Edward Kennedy, the chairman of the relevant subcommittee and floor manager of the bill...
...and Javits (R-N.Y...
...The Senate by tabling the Bartlett amendment fol-lowed the policies enunciated by six different federal court decisions...
...The remain-ing states have various restrictions, some of which are now being challenged in the cdurts...
...Material at the end of the debate against the amendment was inserted by Sen-ators Muskie (D-Maine), Packwood (R-Oregon), Nel-son (D-Wis...
...ROBERT F. DRINAN (Father Robert F. Drinan, SJ., former dean of the Boston College Law School, is a congressman from Massachusetts...
...The decision of the Senate not to change existing law is in line with 41 states which either voluntarily or by court order now fully reim-burse for legal abortions under Medicaid...
...Senator Kennedy also noted that at least 51,000 rapes were reported last year but that the actual incidence of rape is possibly nine times that amount with 4 per cent of those rapes resulting in pregnancies-a number which could mean as many as 18,000 per year...
...It is uncertain whether the House will take up an amendment which would cut off Medicaid funds for abortions...
...Senator Buckley asserted that the issue was not whether the senators approved or disapproved of abortion but whether women are entitled to federal funding for the exercise of their legal rights to obtain an abortion...
...The denial of Medicaid benefits is at least an in-fringement or a qualification upon the constitutional right of a woman to an abortion...
...The two-hour debate on the Bartlett amendment had four proponents including Bartlett and Buckley...
...The com-pelling interest cannot be that of a taxpayer alone since the removal of Medicaid for abortions will cost the American taxpayer ten times as much as the price of federally-assisted abortions since only those eligible for Medicaid would be affected...
...Indeed these federal decisions do not even say that the federal government must finance maternity care under Medicaid...
...If there is any such thing as a "Catholic position" on abortion and the law it was not present in the Senate de-bate on April 10...
...The others were Senator Pastore (D-R.I...
...Commission on , Civil Rights...
...No one will be really satisfied with the 54-36 vote to table the amendment of Republican Dewey Bartlett of Oklahoma...
...Senator Bayh wondered whether alterna-tives to abortion are presented to such applicants...
...At stake is some $40 to $50 million spent annually by Medicaid for abortion reimbursement...
...in addition, the inclusion of such a basic policy in an appropriations bill was thought to be inappropriate...
...The complexities of this matter, touched upon but not really explored in the Senate debate, might well give pause to any member of the House who would want to preclude Medicaid funds from any woman who is seeking a legal abortion...
...The Commission's report emphasized that it took no position on the moral or theological issues underlying abortion...
...Other participants in the debate suggested or intimated that mothers on welfare were offered federally-financed abor-tions as a substitute for planned parenthood...
...No one reason emerged why the Senate voted to table the Bartlett amendment...
...Senator William Hathaway (D.Maine) opposed the Bartlett amendment in these words: "By denying the use of Medicaid and other Social Security funds for abortion, the amendment effectively denies the oppor-tunity for an abortion to the poor, and to the poor alone...
...This particular distinction is the crucial question and is a question unfortunately not really re-solved by the Senate debate on April 10...
...To do otherwise would place the federal government clearly at variance with the Supreme Court decision on abortion as well as with a long line of court rulings on equal protection...
...The amendment was deleted in conference because the House had not taken up the matter...
...Such a qualification can be justified under accepted legal norms only by some compelling governmental interest in the narrowing or the diminution of a constitutional right...
...One, raised by Senator Birch Bayh, related to the kind of counseling which applicants for abortions under Medi-caid received...
...These rulings have stated that, if the federal government makes Medicaid funds available for maternity care, it may not simultaneously deny Medicaid funds for abortions...
...and Brooke (R-Mass...
...The United States Senate came one step closer on April 10 to the acceptance of a policy which would re-fuse to condition use of the statutory benefit of Med-icaid upon the forfeiture of the constitutional right of abortion...
Vol. 102 • May 1975 • No. 4
