Abortion and Health Care Reform: Where Are We Now?
Yesterday, the Senate Finance Committee passed health care reform legislation, making it the last Congressional committee to do so. The stage is now set for efforts to produce consensus floor bills in both the House and Senate, which would then—assuming both houses pass their bills–have to be reconciled in a conference committee.
The three U.S. bishops who have taken point on health care reform for the conference recently issued a letter stating that, from their perspective, there are still serious problems with the bills which, if not corrected, would lead the bishops to oppose them. While the letter spoke of four main issues of concern—abortion, conscience rights for health care workers, making health care more affordable, and ensuring coverage for immigrants—it is clear that abortion remains the most difficult issue to resolve.
In general, the USCCB has embraced the idea of making health care reform “abortion neutral.” The idea—shared by some other pro-life and pro-choice groups as well—is that current federal law regarding abortion would be preserved. Reform would not be used as a vehicle to advance the goals of either side in the abortion debate.
While this principle has obtained widespread acceptance, the challenge is defining what “neutrality” means. Pro-life advocates argue that there is a long-standing tradition—first enshrined in the 1976 Hyde Amendment—of not using federal funds to pay for abortions except in very restrictive cases (rape, incest, threat to mother’s life). They want that same principle applied to the health care reform bills currently moving through Congress. Pro-choice advocates, for their part, are concerned that such restrictions would lead private plans who currently offer abortion coverage to drop it. This too, they argue, is a violation of neutrality.
While pro-life advocates are not necessarily united on every point, there are three broad issues in health care reform that appear to concern them. The first is that all of the bills currently moving through Congress would leave the details of the standard benefit package up to the Secretary of Health and Human Services. Since a large number of plans do not cover abortion, a decision to include it in the standard benefit package would amount to a significant change in the status quo.
The second—and related—problem is the role of the so-called “public option” in the House bills. If abortion was included in the standard benefit package and the public option covered that package it could—depending on how the program was ultimately structured—mean that the government would be sending checks to abortion providers. Some supporters of health care reform argue that this is not the same thing as using taxpayer dollars to pay for abortion, since the plan will pay claims using the premiums paid by enrollees. In practice, though, many of the enrollees in the public plan are likely to be eligible for premium subsidies, so taxpayer and premium dollars will end up co-mingled.
The third issue is the administration of the subsidies to individuals that would assist them in purchasing a plan. If individuals combined these subsidies with their own resources to purchase a plan that did cover abortion, would that constitute a direct federal subsidy of abortion? This is one of the issues that advocates on both sides are currently arguing over. Some of this may depend on whether the subsidy is considered a direct payment from the federal government to a health plan, or whether it is a payment to an individual, who then chooses how to spend it.
Facing a strong challenge from pro-life Democrats within their ranks (40 of whom—in the House—have promised to oppose a bill that is not abortion-neutral), the Democratic Congressional leadership has been looking for options. Their preferred solution appears to be something similar to the amendment attached to the House Energy and Commerce bill by Lois Capps (D-CA) and Henry Waxman (D-CA).
The Capps-Waxman amendment covers a lot of terrain. First of all, the amendment prohibits the Secretary of HHS from mandating that private plans cover abortions other than those permitted under the Hyde Amendment. However, the Secretary could still opt to have the public option provide broader coverage for abortion. Secondly, the amendment would require that each “health exchange” offer at least one plan with no abortion coverage and one plan with broad abortion coverage. Thirdly, plans offering broader abortion coverage that received public subsidies under the bill would have to show that the public funds were not used to pay for those abortions. Finally, the amendment states explicitly that nothing in the law pre-empts existing state laws on abortion.
Pro-life groups have strongly rejected the Capps-Waxman approach. They argue that requiring plans to demonstrate that federally-funded subsidies are not being used to fund coverage for abortion amounts to an accounting exercise that is meaningless in practice. In the end, say the advocates, federal funds are going to health plans that cover abortion.
As Steven Waldman (editor of Beliefnet) and others have suggested, though, this argument has some holes. In practice, federal funds flow to abortion providers indirectly in a number of ways. Planned Parenthood clinics, for example, are able to obtain federal family planning grants. While federal funds cannot be used to fund abortions under the Medicaid program, a number of states use their own funds for this purpose and the federal and state funds are essentially co-mingled in state accounts. Even the Medicare program makes payments to hospitals that perform abortions, even if Medicare does not cover the procedure.
This is not to say that the Capps-Waxman approach is without problems. While it purports to prohibit the Secretary of HHS from mandating that private plans cover abortion, the requirement that every exchange offer a plan that covers abortion may well amount to a mandate in another form, particular in markets with few insurers. This would be particularly the case if the “public option” does not survive the legislative process. If the “public option” does survive, however, the Capps amendment would almost seem to require that it cover abortion in cases where no other plan would do so.
It is hard to see the Capps-Waxman solution as truly “neutral” on the question of abortion. It seeks to use federal regulation to ensure that choices exist with respect to abortion coverage that may not currently exist in many local insurance markets. To be fair, it seeks to provide both pro-life and pro-choice consumers with choices that fit their values. That may or may not be a good goal, but it is certainly not neutrality.
For these reasons, many pro-life supporters of health care reform supported an amendment offered by Bart Stupak (D-MI). The amendment stated simply that “no funds authorized under this act may be used to pay for any abortion or to cover any part of the costs of any health plan that includes abortion,” except for those that would be authorized under the Hyde amendment.
At first glace, the Stupak amendment seems to merely apply the Hyde criteria to any federally-operated “public option” plan or federal-funded public subsidies. Pro-choice critics, however, argue that the language could be interpreted to prevent health plans participating in the exchanges from offering abortion coverage to any of their customers, even those who are not using federal subsidies. That was probably not Stupak’s intent—and I personally think it’s a stretch to interpret the language that way—but it might be useful for him to clarify this if he offers the amendment again on the House floor.
The Senate bill approved by the Finance committee yesterday took a slightly different approach to some of these issues in an effort to address pro-life concerns. First of all, the bill states that coverage for abortions (other than those permitted under Hyde) cannot be part of the standard benefits package. However, plans would still be allowed to offer such coverage voluntarily. Using language similar to the House Capps-Waxman amendment, individuals could enroll in those plans using federal subsidies but the plans would be required to demonstrate that the subsidies were not used to pay for abortions. The subsidies also appear to be structured as tax credits rather than direct payments from the government to health plans.
Steve Waldman, Editor of Beliefnet (who, it must be said, has done the best job of anyone of keeping track of this debate) has suggested an alternative to Capps-Waxman. Under his proposal, abortion would not be part of the standard benefit package, but individuals purchasing insurance coverage from private carriers through the exchange would be able to purchase a rider to their policy using their own money. While Waldman doesn’t provide details, his proposal suggests at least some government role in regulating such a market, but no federal funding would be used to subsidize the coverage. It’s an intriguing suggestion, one that got a moderately favorable review from Richard Doerflinger at the USCCB. Senator Hatch (R-UT) actually proposed something similar as an amendment to the Senate Finance bill, but the amendment was defeated.
The question, of course, is whether enough people are interested in a grand bargain that would take the abortion issue off the table. The Obama administration seems to be sticking to its position that no further legislative changes are needed to address this issue, despite the strenuous protestations of the USCCB to the contrary. In the House, the Democrats have 78 more seats than the Republicans. Even if they lost the 40 pro-life Democrats who have threatened to vote against the bill, they might still have enough for passage. While some national pro-life groups—such as the NRLC—are ostensibly neutral on health care reform, a significant share of grassroots pro-life advocates appear so deeply suspicious of Obama that is hard to imagine them not mounting a strong campaign to defeat the final bill. I suspect that the Obama administration would like the support—or at least the neutrality—of the USCCB, but the lack of such support will certainly not prevent him from moving forward. In the end, the political will to do a deal—on all sides—may just not be there.