Over the years, whenever the topic of abortion would come up in private conversations, my pro-choice friends would counter my pro-life points with something like this, “As long as no one forces you to have an abortion or forces you to pay for abortions, what right do you have to force your views on others and deny a woman her constitutional right?”
Though we might not have agreed, I understand those sentiments are based upon a long-standing, Supreme Court-tested agreement between abortion advocates and abortion opponents known as the Hyde Amendment.
Since 1977, the federal government has prohibited taxpayer-funded abortions except in the cases of rape, incest and the life of the mother is endangered. Maine is one of 34 states that follows those federal guidelines and does not allow taxpayer-funded abortions except in the cases of rape, incest or when the life of the mother is endangered. When Gov. Janet Mills was our attorney general, her office vigorously and successfully defended the state in 2015 against a lawsuit by the American Civil Liberties Union and several abortion providers who desired to remove Maine’s restriction on taxpayer-funded abortions.
LD 820 is a bill presently before our Legislature that would change that. The bill, according to its summary, “provides that abortion services that are not approved Medicaid services must be funded by the state.”
As a taxpayer who is personally opposed to abortion, I support Maine’s history of abiding by the Hyde Amendment. According to a 2016 Politico-Harvard poll, about 60 percent of likely voting Americans oppose taxpayer-funded abortions. The same poll showed poorer voters, including the very women that would supposedly “benefit” from legislation, such as LD 820, far more opposed taxpayer-funded abortions than wealthier voters.
As an attorney, I find the claims that the Hyde Amendment discriminates against women and restricts their constitutional rights to be unsound and fallacious. The Supreme Court declared the government has a perfectly legitimate reason to discriminate between funding live births and abortion services in Harris v. McRae (1980). In other words, choosing to fund maternity costs and not abortions is not discrimination against women. Harris also stated that upholding the Hyde Amendment “has imposed no restriction on access to abortion that was not already there.”
Business owners should also be aware of how LD 820 could affect them.The Supreme Court ruled in Burwell v. Hobby Lobby that some businesses whose owners religiously objected to abortion are exempt from federal mandates. LD 820 would require “all health insurance carriers that provide coverage for maternity services also provide coverage for abortion services.” The only employers exempted would be “an employer that is a church, a convention or association of churches or an elementary or secondary school that is controlled, operated or principally supported by a church or by a convention or association of churches.” I believe this provision of LD 820 is not constitutional and disregards the sincerely held religious beliefs of many of Maine’s small, family-owned businesses.
The last time a serious attempt was made to force Mainers to pay for abortions with their tax dollars was in 2009. Despite a pro-choice governor, Senate and House at the time, that attempt failed when Mainers (both pro- and anti-abortion) made it clear to their leaders this was not fair or acceptable.
Back in 2009, I was a lifelong-Democrat, and I’m thankful the leaders of my party listened and let that bill die. Over the years, however, many like me who dissented on social issues with the party no longer felt welcomed and became independents or Republicans.
I hope Mainers will once again take advantage of the opportunity to let their voices be heard, and let their leaders know they oppose the injustice of LD 820 and taxpayer-funded abortions.
Brett Baber has practiced law in Maine since 1985 and is a partner at Lanham Blackwell & Baber. He is a frequent commentator on his regular radio segment, Legal Briefs, on WVOM radio.