According to Destro, it’s essentially a question of state vs. federal tax dollars.
Since 1976 Hyde restrictions have kept federal tax dollars from being used to pay for abortions.
Hyde does not, however, restrict states’ ability to use state tax dollars to pay for abortion. So, while federal funding cannot be used for abortion, state funding can.
Rhode Island’s new bill amended state law to include abortion in its Medicaid provisions. The state claims it will only use state funds to pay for abortion, thus not violating the Hyde Amendment.
“California and New York have been doing this for a long time,” Destro explained, adding that “what Rhode Island is doing is nothing new.”
Though it may appear that states are using a legal loophole to work around Hyde, Michael New, senior associate scholar at the Charlotte Lozier Institute, told CNA that “there is no loophole.”
Normally, the federal government reimburses states for a percentage of their Medicaid expenditures at a rate called the Federal Medical Assistance Percentage.
States that want to pay for abortions through their Medicaid program could do so out of their own coffers and simply just not be reimbursed by the federal government.
While clarifying that “the federal government does not provide reimbursements or matching funds for elective abortions paid for by state Medicaid programs,” New explained that “states have always been free to use their own tax dollars to cover abortions through their own respective Medicaid programs.”
According to a list compiled by the abortion research organization the Guttmacher Institute in March, other states covering abortion in their Medicaid plans are California, Oregon, Washington, Montana, Minnesota, Illinois, New York, Vermont, Maine, Massachusetts, Connecticut, New Jersey, Maryland, New Mexico, Alaska, and Hawaii.
This means that if you live in any of these states your tax dollars are being used to pay for abortion.
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Though New said that there has been some litigation in some states to challenge the constitutionality or legality of covering abortion in a state Medicaid program, he is not aware of any current efforts challenging the practice.
“In 2017 Gov. Bruce Rauner of Illinois signed legislation requiring the state Medicaid program to cover elective abortion. The Thomas More Society, a pro-life nonprofit, subsequently sued, arguing that legislation failed to go through the proper budget process. The lawsuit was unsuccessful,” New said.
Impact of including abortion in Medicaid
Proponents of Medicaid funding for abortion have argued that it is a necessary step to ensure abortion access for impoverished communities.
Rhode Island’s new law claims that “restrictions on abortion coverage have a disproportionate impact on low-income residents, immigrants, people of color, and young people who are already disadvantaged in their access to the resources, information, and services necessary to prevent an unintended pregnancy or to carry a healthy pregnancy to term.”
The bill concludes that “the purpose of this legislation is to promote equity in access to reproductive health care.”