On September 28, 2017, Illinois Gov Bruce V. Rauner signed into law a sweeping reversal of abortion-constraining state policies. Sponsored and shepherded to passage by the Democratic majority in the Illinois General Assembly, the measure reinstates the use of public funds for abortion care under state insurance plans, including Medicaid. In explaining his decision to sign the legislation, Governor Rauner, a prochoice Republican, said “that a woman living with limited financial means should not be put in the position where she has to choose something different than a woman of higher income would be able to choose.”
The legislation, introduced on December 20, 2016, cleared the House on a party line vote of 62 to 55 the following April and was passed the following month by the Senate, in a 33 to 22 vote that was similarly divided by party. Although it was held up temporarily by a motion to “reconsider the vote” because of concerns over a potential gubernatorial veto, the motion was withdrawn on September 25, 2017, and signed by Governor Rauner 3 days later. The law is to take effect on January 1, 2018.
The law’s most significant element is its effect on the Illinois Public Aid Code to direct state Medicaid funds toward the underwriting of medically necessary abortions, making it the first state to enshrine such Medicaid policy in its legal code. The new law also brings the state into compliance with a similarly minded Illinois Circuit Court order (Doe v Wright), the implementation of which has been ignored for more than 2 decades.
Other effects of the law include
- amending the State Employees Group Insurance Act of 1971 to reestablish abortion as a benefit of the Illinois state employees’ health plan;
- amending the Problem Pregnancy Health Services and Care Act of 1979 , which had prohibited the Department of Human Services from making grants to nonprofit agencies and organizations that “use such grants to refer or counsel for, or perform, abortions”;
- amending the Illinois Abortion Law of 1975 to ensure the continued legality of abortion in the state should Roe v Wade be overturned by a reconstituted Supreme Court. Relevant language removed included the assertion that “if those decisions of the United States Supreme Court are ever reversed…then the former policy of this State to prohibit abortions…shall be reinstated.” Similar such “trigger” statutes still prevail in Kentucky, Louisiana, and South Dakota;
- removing a long-standing policy statement of the General Assembly “that the unborn child is a human being from the time of conception and is, therefore, a legal person…under the laws and Constitution of this State.”
The reactions of abortion right advocates and their opponents were predictable. Jennifer Welch, JD, President of Planned Parenthood of Illinois, said that “HB 40 ends the discriminatory practice of denying women coverage based on how much money she makes or where she works.” Lorie Chaiten, JD, director of the reproductive rights project for the American Civil Liberties Union of Illinois noted that “Women across Illinois are empowered to make their own health care and life choices without interference from politicians. We are pleased the governor has stood with these women and made the right decision for our state.”
In objecting to the new legislation, Chicago Cardinal Blasé J. Cupich issued a statement saying that the new law will “now force Illinois taxpayers to pay for the taking of human life, in this case of a defenseless child in the womb.” Nate Adams, MA, executive director of the Illinois Baptist State Association voiced his conviction that “Baptists in Illinois will be letting Governor Rauner know how deeply distressing his action is to people who revere God-given life.”
The continuing struggle over abortion is increasingly becoming a quintessential US phenomenon. Most other English-speaking people, let alone most western democracies, have settled the controversy through secularization and depoliticization. Similar US solutions appear doubtful, given persistent politicized sectarianism that has come to represent US exceptionalism of a different kind.
The recent skirmish in Illinois is emblematic of this unwinnable culture war. One cannot help but wonder about the wisdom of a divisive all-out conflict that most developed nations have long seen fit to resolve, or about those in a multicultural society who seek to impose their convictions on others rather than embrace pluralism. Conflicts between those who support or oppose abortion rights are not resolved by current laws and regulations. Examples include, but are not limited to section 1303 of the Affordable Care Act (ACA), which addresses coverage of abortions by ACA marketplace plans.
Those opposed to the application of public funds to abortion care could be provided with an “opt out” clause in their health plan, or else be guaranteed that their premium contribution is safely segregated and divorced from abortion care. Details aside, it is balancing the “rights of all” and finding common ground that should drive a national solution.
About the author: Eli Y. Adashi, MD, MS, is a professor of Medical Science and the former dean of Medicine and Biological Sciences at the Warren Alpert Medical School of Brown University in Providence, Rhode Island. (Image: Brown University)
About The JAMA Forum: JAMA has assembled a team of leading scholars, including health economists, health policy experts, and legal scholars, to provide expert commentary and insight into news that involves the intersection of health policy and politics, economics, and the law. Each JAMA Forum entry expresses the opinions of the author but does not necessarily reflect the views or opinions of JAMA, the editorial staff, or the American Medical Association. More information is available here and here.