State-Funded Healthcare & Abortion: Is Exclusion An Infringement of Women's Rights?

 If a state subsidises the healthcare of its people, but does not subsidise abortions (except when they’re required to protect the health of the mother), is it necessarily infringing on the rights of women?

ABSTRACT

This article examines whether a state that subsidises healthcare but excludes abortion from public funding necessarily infringes women’s rights. It argues that, in theory, non-subsidisation does not always amount to a rights violation, because a distinction can be drawn between prohibiting abortion and declining to fund it. Drawing on Isaiah Berlin’s distinction between negative and positive liberty, the article acknowledges that a state may leave abortion legally available without actively supporting access to it. However, the article ultimately contends that this theoretical distinction weakens in practice. Abortion is recognised by the World Health Organisation (WHO) as essential healthcare and excluding it from state-funded systems creates financial barriers that fall most heavily on low-income women. As a result, non-subsidisation can operate as a form of indirect coercion, limiting bodily autonomy and reinforcing both gender and class inequality. Through comparison of the United Kingdom and the United States, the article demonstrates that where abortion is publicly funded, access is significantly more equal, whereas its exclusion produces measurable disparities in healthcare outcomes and reproductive choice. The article concludes that non-subsidisation does not necessarily infringe women’s rights in every theoretical case, but in practice it frequently undermines equality, autonomy and the state’s commitment to universal healthcare.

INTRODUCTION

According to the BBC, in 2021 a pregnant woman in Poland died from sepsis after doctors refused to perform an abortion. They cited a near total legal ban, enacted weeks earlier. More importantly, her death raises a question that goes beyond Poland. Does a state fail its female citizens, by carving out abortion from its state-funded healthcare? State subsidised healthcare is a government system using public funds to cover all or part of a citizen’s medical expenses, ensuring access to care regardless of personal income (Lexxion, 2018). Furthermore, abortion is when a pregnancy is ended so that it does not result in the birth of a child (BPAS, 2015). And lastly, rights can be defined as fundamental legal, social or ethical principles of entitlement and freedom. They outline what citizens are allowed to do, what is owed to them, how they are entitled to be treated (The Constitution Society, 2009). ‘Subsidised healthcare’ assumes or implies that the state has accepted the responsibility of its citizens’ health, and by not subsidising abortion, suggests a deliberate attempt at exclusion meaning it is not an oversight. The question asks whether this is always a violation or just sometimes, as seen in the phrase ‘necessarily infringing’. This essay will argue that while non-subsidisation does not constitute an infringement of rights in a theoretical sense, in practice, it disproportionally disadvantages and burdens low-income women, which contradicts the state’s own promise to universal healthcare.

Section 1: The Argument that Non-Subsidisation Infringes Women's Rights

The most prominent case for infringement relies on three interwoven claims. Abortion is healthcare and therefore, the denial of it undermines bodily autonomy. Finally, the financial barrier falls the most on those who can bear it least. The WHO (2024) has stated that abortion care is included in the list of essential healthcare services. Additionally, it mentions that lack of access to safe, timely and affordable and respectful abortion care is a critical public health and human rights issue. If a state accepts that it has a duty to fund essential healthcare, it becomes an act of exclusion when it single out abortion, which shows that this is not a neutral funding-based decision, but instead a gender based one, where only women are affected. This intricately links to the principle of bodily autonomy. In 1971, Philosopher Judith Jarvis Thomson argued that a woman’s right to her own bodily autonomy – the right to control her own body – takes precedence over a foetus’ right to life, meaning nobody can be forced to sustain another person’s survival. Moreover, the financial barriers make abortion inaccessible and therefore the state is declining to help. It is in effect compelling a woman to continue her pregnancy against her will as she has no other option. More importantly, the burden is not shared equally amongst all women. Guttmacher Institute (2022) found that over 70% of abortion patients in the United States are from low- or moderate-income backgrounds. It was found that wealthy women either travel abroad or pay for private healthcare, both of which are often unavailable to poorer women. Additionally, the Amendment, since 1976, has banned federal Medicaid from funding abortion in the US. This has been shown to force a considerable number of low-income women into unwanted pregnancies. Non-subsidisation does not have an equal restriction on all women; it restricts poor women specifically, creating not only a gender-based harm, but also a class-based one. Under international law, CEDAW Article 12 notes that states must ensure non-discriminatory access to healthcare, including family planning. The committee has interpreted this to include abortions. Therefore, a state that funds healthcare universally but carves out abortion may be in breach of its own treaty obligations. However, Dicey (1883) argues conventions are rules of morality and political practice, not law. The Supreme Court in Miller (2017) reaffirmed that constitutional conventions have no legal force. (Lawyers & Jurists, 2025). This limits the enforceability of CEDAW but does not diminish its weight as an international standard.

Section 2: The Argument that Non-Subsidisation Does Not Necessarily Infringe Women’s Rights

However, there is the opposite perspective of a state declining to fund something is explicitly different from prohibiting it and that non-funding does not, alone, constitute to a rights violation. This argument draws on Isaiah Berlin’s 1958 distinction between negative liberty and positive liberty. Negative liberty refers to freedom from external influences and interventions, whereas positive liberty refers to the support or resources provided (often by the state or other institutions) to enable people to exercise their choices. Banning abortion removes a woman’s negative liberty because the government interferes with her own personal choices. A state that does not pay for abortion may be failing to support positive liberty, however that is a separate claim to be made. The US Supreme Court ruling that affirmed this idea was Maher v Roe 432 U.S. 464 (1977) whose primary holding was “paying for childbirth does not mean that a state needs to pay for non-therapeutic abortions”, meaning states aren’t legally required to fund abortions even if they fund childbirth. Furthermore, the topic of abortion involves a moral disagreement between personhood and the status of a foetus. Rawls in 1993 argues abortion creates a reasonable disagreement because people hold fundamentally different moral beliefs about personhood and foetal life. Since we live in a pluralist democracy, the state must therefore balance opposing viewpoints over assuming one moral position is institutionally higher. This means that the government may reflect occasionally conservative or religious values and policies without necessarily infringing on rights, especially if abortion continues to remain legal through privileged access.

Section 3: Comparative Analysis – Theory & Practice

While this argument has force on paper, it begins to collapse when we look at how it operates in practice. When comparing national frameworks and systems the consequences of non-subsidisation are not only theoretical, but they are also in fact measurable and consistently fall on vulnerable women. The United Kingdom is a clear example of non-infringement of rights. Through the NHS, abortion has been publicly funded and widely available since the Abortion Act 1967 (as amended in 1990). In 2021, the NHS funded over 98% of reported abortions and only the remaining 2% were privately funded (Office for Health Improvement & Disparities, 2022). In the UK abortion is treated as routine healthcare and income is not a barrier, making access effectively equal for high- and low-income women. However, the United States presents the starkest contrast. The Hyde Amendment in 1976 banned Medicaid from funding abortion. Multiple Supreme Court rulings have also removed the constitutional right to abortion entirely in some states that choose to do so. The result of this creates an institutional gap in those who can receive treatment. Women with financial resources can access abortion, whereas those without such resources often cannot. The gap is not just theoretical but statistically demonstrable.

Section 4: Conclusion

The question aims to assess whether non-subsidisation necessarily infringes on women’s rights. Theoretically, the answer would be no, not in every case. In theory, a state can principally decline to fund a procedure while leaving it legal and practically accessible, but the comparative evidence displayed shows that this is rarely the case in practice. In cases where abortion is excluded from state-funded healthcare, there is a large burden on low-income women. This is clearly demonstrated in the US, however in the UK, where abortion has been included within state-funded healthcare, there is no gap. The question, therefore, is not one of just rights theory, but more so about political will. States that fund healthcare universally but exclude abortion make a choice from a position of power about whose health counts. Izabela’s death in Poland was not just an accident created by the law. It can be described as a logical consequence of the government’s institutional failure to protect women.

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Article by Samanvi Godhawale

Edited by Ceylin Deniz G