Abortion Funding 101: Why Can Congress and State Legislatures Refuse to Pay for Abortion Care?

Women Have Options is a private, statewide fund that helps women afford their reproductive choice by providing financial assistance for contraception, emergency contraception, and abortion services. There is a need for financial assistance for abortion care because Ohio Medicaid, the joint federal and state health insurance program for low-income Americans, pays for pre-natal care and childbirth, but does not pay for abortion care. Why, you ask? Here is the answer.

Under the Constitution, the Federal Government is Not REQUIRED, but Is PERMITTED, to Pay for Abortion Care

After the landmark case that established the right to choose abortion, Roe v. Wade, two women from Connecticut sued their state. Connecticut Medicaid was paying for prenatal care and childbirth, but not abortion. The women argued that the state should not be able to discriminate between abortion and pre-natal care. They also argued that the state’s failure to help them pay for the procedure was an impermissible interference with their right to choose abortion.

The U.S. Supreme Court, in rejection their arguments, started by pointing out that nothing in the Constitution requires the state to pay for anyone’s medical care under any circumstances. It went on to explain that, should the state choose to pay for medical care, it is free to choose how its money is spent.

The Court found that the state’s inaction – prohibiting Medicaid payments for abortion – imposed no restriction on abortion that was not already there.  The Court further stated that, under the Equal Protection clause of the 14th Amendment, distinctions based on poverty do not get any special protection. As long as such laws are rationally related to a legitimate government purpose, they are valid.

As you might suspect, the Court went on to find that encouraging birth over abortion was a legitimate government purpose, and that using state funds for birth but not abortion was rationally related to that purpose.

This case, Maher v. Roe, established that states are not constitutionally REQUIRED to help low-income women pay for abortion. However, it did not PROHIBIT states from providing such assistance.

Current Federal Law Prohibits Federal Medicaid Funds from Paying for Abortion Care

The federal government, and most state governments, have elected not to help low-income women choose abortion.

The Hyde Amendment – a rider on larger legislation, NOT a Constitutional Amendment – prohibits Medicaid from using federal funds to pay for abortion care except in situations of rape, incest, or imminent threat of maternal death.  It was first introduced in 1976, and was renewed most recently by President Clinton in 1993. It was challenged and upheld in the U.S. Supreme Court, with reasoning similar to the Maher case: Congress’s refusal to pay imposed no restriction on abortion that was not already there.

The good news is that the Hyde Amendment, like any other legislation, is always subject to change. And there is indeed a pro-choice effort underway to repeal it

Ohio Follows the Federal Standard – But Not All States Do

The Hyde Amendment does not prohibit states from using their own funds to pay for abortion care. Remember: Medicaid is a joint program and Congress cannot legislate within the states – the Constitution prevents the feds from legislating in the states through its separation of powers provisions.

Some states allow Medicaid funds to be spent on abortion care in more circumstances. For example: California Medicaid funds most medically-necessary abortions pursuant to a court order. Hawaii does the same, though voluntarily through state laws and regulations.

Ohio law is lock-step with the Hyde Amendment: Ohio Medicaid pays for abortions only in cases of rape, incest, or imminent threat of maternal death.  

Women Have Options Strives to Fill the Gap Between Choice & Access

As an all-volunteer organization, we fundraise and distribute funds to clinics throughout Ohio. These clinics, in turn use 100% of the funds to provide financial assistance to women in need. We are proud to serve Ohio as we attempt to fill the gap between choice and access. And, we thank our generous supporters for their support.

Help us support the women that our state and federal government have left behind. Make a donation today! 

Interested in repealing the Hyde Amendment? Get more involved here.

Stay tuned for more information about abortion law in Ohio. Coming up: Transfer Agreements 101 and an explanation for why transfer requirements are so hard to challenge.