There are at least six key differences that need to be resolved before the House and Senate can cut a deal, in secret, to pass Obamacare. Maybe the most difficult issue to resolve is the issue of using federal tax dollars to fund abortion. It seems clear, from a reading of the House- and Senate-passed health care bills, that their positions on the federal funding of abortion are at odds and will be difficult to reconcile.
During the House debate, an amendment was added by Rep. Bart Stupak (D-MI) (the Stupak Amendment) by a 240-194 vote that states the following: “No funds authorized or appropriated under this Act (or an Amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage for abortion.” There are exceptions in this prohibition for the life of the mother, rape and incest. The prohibition specifically allows states to buy abortion coverage if they so choose, provided they do not use federal funds, any funds derived from federal subsidies under Obamacare, or any nonfederal funds needed to access another federal program. This is easy to understand language and reflects the annual funding rider on appropriations bills, commonly referred to as the Hyde Amendment, which prohibits federal tax dollars from funding abortion. This language was supported by pro-life groups and is widely considered very strong language protecting the taxpayers from funding abortions.
In the Senate, Senator Ben Nelson (D-NE) offered an amendment (the Nelson Amendment) similar to the Stupak Amendment in the Senate. That Amendment was tabled (defeated) by a 54-45 vote. A vote in favor of the motion was a vote against the Nelson Amendment, therefore only 45 Senators supported a ban on the use of federal funds in Obamacare for abortion. A deal was struck later in the debate and put in Senate Majority Leader Harry Reid’s (D-NV) “Manager’s Amendment.” The new language adopted in the Senate-passed Obamacare bill allows the creation of “Allocation Accounts” to pay for abortions.
Americans United for Life argues that it’s “the fact that the government will subsidize insurance plans that cover elective abortions. In departure from longstanding federal policy, section 1303(b)(1)(A) allows a ‘qualified health plan’ – one that participates in an Exchange and is available to individuals who receive tax credits to cover part of their insurance premiums – to include abortion coverage. Therefore, insurance plans that cover elective abortions will receive these federal subsidies.”
Here is how it works: the Senate version of Obamacare says that “an exchange shall be a governmental agency or non-profit entity that is set up by a State.” The Exchange “shall make available qualified health plans to qualified individuals and qualified employers.” Now, the federal government will subsidize private insurance plans through tax credits and subsidies to a state’s Exchange or non-profit entity. These health care plans are allowed to cover abortion, but through an accounting gimmick where an individual who wants abortion coverage will pay $12 extra for a plan.
Very simply, the House bill explicitly forbids federal funds from going to any plan that covers abortions, similar to the law governing the Federal Employees Health Benefits Plan. The Stupak Amendment will require insurance companies to omit abortion coverage if they get federal monies. The Senate restrictions explicitly allow for abortion coverage in federally subsidized plans, under the pretext that people will have to pay an extra $12 dollars in non-federal monies for the coverage. Considering all the federal money that will be pouring into the system, $2.5 trillion over the first 10 years of implementation, to argue that no federal money will support or promote abortion under a government-run health care system defies logic. It seems clear that the House and Senate have a long way to go to reconcile their differing positions on abortion.
Far from maintaining the Hyde Amendment limitations on federal abortion funding, the Harry Reid (D-NV) “manager’s amendment” on which cloture has now been invoked in the Senate would begin to tear down the firewall that individual taxpayers now enjoy in various federal programs not to participate in abortion funding; establish a line-item process so that employees in many states will see a special “abortion debit” on their pay check stubs; create new health insurance plans offered through the Office of Personnel Management (OPM), one of which will almost certainly offer elective abortions; and open up a 50-state battle on abortion funding that could lead to the all-or-nothing inclusion or exclusion of such funding in each state.
The language included in the bill is not the “Casey compromise” that was floated over late last week on Capitol Hill in an effort to garner the support of Ben Nelson of Nebraska, who offered the Nelson-Hatch amendment rejected by the Senate 54-45 on December 8. Casey’s amendment, which failed to break the deadlock over abortion funding in the Senate bill and was strongly opposed by the national right to life groups and the U.S. Conference of Catholic Bishops, included two features that have been omitted in Reid’s manager’s amendment: a codification of the House-approved Weldon conscience language and an individual opt-out from abortion coverage.
Instead, “opt-out” language applies only to entire states, setting the stage for fresh abortion funding battles in each state capital. State and federal abortion funding policies have been relatively stable for years, with federal funding governed by nearly two dozen laws that prohibit abortion funding, including the Hyde amendment, which allows such funding only under limited conditions in the Medicaid program, and another amendment prohibiting the inclusion of elective abortion in the hundreds of plans offered under the Federal Employee Health Benefits program (FEHBP). Just over a third of the states use their own money now to fund abortions for low-income residents. Under Reid’s manager’s amendment, with the inclusion of private-sector plans that offer abortion coverage in the state exchange programs and one OPM option at stake, each state will likely revisit its abortion funding policies under what could be an all-or-nothing scenario.
The language governing the new state opt-out provision could be read to mean that the state may opt out of abortion coverage only if it prohibits all such funding. Since no state in the Union now prohibits abortion funding when the life of the mother is at stake, the opt-out language could induce some or many states with “Hyde Amendment-type” language to drop their funding restrictions altogether.
In other respects, the Reid manager’s amendment today merely elaborates on the Rube Goldberg structure created by the Capps Amendment rejected in the House-passed health reform bill. But it does so with a twist. Because nothing in the manager’s amendment protects the individual’s right as established under current law not to fund elective abortions or plans that cover them, states where abortion coverage is assured through the exchange (and the number of such states, as noted above, could easily grow) will be required by the bill to set up a segregated funds system that will actually require enrollees to pay not less than $1 per month into an abortion fund under which elective abortions will be reimbursed. The “OPM option” in the bill will require each state exchange to have at least one plan that does not cover elective abortions, but the newfound powers of OPM could conceivably result in the “elective abortion” option being designed in far more favorable terms than the alternative that has no such coverage. OPM’s thumb will be on the scales.
In effect, many individuals who live in states that fund abortion will be required either to write a monthly check to the segregated abortion fund, or see a special line-item debit on their pay stub each month to underwrite elective abortions, right alongside their FICA and Medicare deductions. That fact alone illustrates how the Reid manager’s amendment, contra-distinct from the House-passed bill which contained the Stupak-Pitts comprehensive abortion funding limit, will institutionalize abortion funding as essential medical care. Even taxpayers who live in states that decide to continue their abortion funding limits will be subsidizing the management of abortion-inclusive plans in other states.
Effectively, the current FEHBP policy prohibiting all subsidies for plans that cover elective abortion will be cut in half. Federal involvement in the active management of plan options that include elective abortion and that may ultimately cover millions of Americans is the kind of breakthrough that will put the Hyde Amendment and other laws further down the ramp to extinction. This is not the result the authors and endorsers of the Stupak-Pitts amendment in the House signed on to achieve.