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.
As I have said before, I wonder how many of those who are so deeply concerned that no government funds might even very indirectly pay for abortions are willing to check to see if the health insurance they receive through their employers covers abortion, and if so, to refuse it. Mine does, and like most employees nowadays, I pay some of the premiums. I consider that to be a much more direct funding of abortion than if my tax dollars were to go as subsidies to women to help them buy insurance with abortion coverage, but the insurance companies had to keep government funds segregated and pay for abortions only with funds paid by the women themselves.
One could argue that any government help given to individuals — food stamps, for example — frees up money that could be used for abortions or insurance that covers abortion.
As others have pointed out, the “money is fungible” argument could be used to deny government aid to Catholic hospitals, schools, or charitable organizations on First Amendment grounds.
So far as I can see, at the end of the day, i.e., when all amendments have been voted on and all negotiations are over, I would take it that, unless some drastic pro-abortion or anti- conscience clause language was explicitly written into the bill, the a serious Catholic legislator could reasonably conclude that the coverage of many more people than presently covered was sufficient to make a prudential decision to support the bill, provided that he or she is prepared to pursue futurre legislative avenues to take care of the abortion and conscience clause concerns. Am I wrong to think that, given all we know about the likelihood shape of the final bill in question, it will come down to a prudential judgment about what would be “equitable” given all the circumstances and not to a vote on some matter of clear principle?
Thanks for this. I have had trouble sorting out the basic facts of this situation. Steinfels column helped lay out the problems, but I wasn’t sure exactly where the current bills were on the question until now.
David & Bernard – agree with your analysis and conclusions. The single issue bishops is too simplistic given the complexity of insurance coverage in the US; who is covered and how; who pays and how.
It is also frustrating that the bishops continue to hang on to one issue while sacrificing the common good. The single issue unfortunately does not allow for input from women; from hospital, MDs, and families that must deal with women who consider abortions.
In a moral and ethical level, single issue negates and makes black and white a very complex, personal, medical, and family decision that is impacted by education, economics, employed or not, underemployed, family pressure/support, etc.
The approach needs to be more nuanced; clearly articulate the goal of fully insured; freedom of conscience; but realize that the perfect can not be the enemy of the good.
Peter, many thanks for this roundup. It’s the best primer/analysis I’ve seen, and you are generous to credit Steve Waldman, who has been doing good stuff.
I am intrigued by the implications of the Hatch/Stupak amendments, as to whether, if passed, they could be used by pro-life groups to pursue changes through the courts in other areas. This may be a concern of pro-choicers, or so I hear.
On the other side, I think that many pro-life groups (don’t know about the USCCB) will find some remote material cooperation in any package and will raise the charge tht the reform bill “funds” abortions. And I think the Obama administration knows that and thus has little motivation to compromise further.
That all is a shame. I think if the administration got behind some version of Stupak they could either get some powerful allies on board or they could force their opponents to scramble for another reason to oppose health care reform. It seems like a smart move, but this is sausage-making.
David Nickol’s point is a very valid one, but these fights always resemble rear-guard actions after a defeat. The bishops put out a draft pastoral on marriage that bemoans the prospect of gay marriage but makes no moves to outlaw straight divorce. That battle was lost, so they move on to the next one. So I wouldn’t expect any effort to redress current problems regarding abortion funding.
Peter, thank you for this excellent overview!
Clearly, the Stupak amendment would be better than Capps-Waxman, and it is worth all of us, I’d think, taking a minute or less to call our representative and urge her/him to support Stupak.
At the same time – Capps-Waxman, while no means great, is not the worst imaginable solution, and if it becomes inevitable, I’d think that we can’t let the good become the enemy of the perfect.
Coming from the same people who vehemently argue that vouchers to catholic schools do not constitute government support of religion, the level of scrupulosity over the potential for indirect government support for abortion is laughable and I think sufficient reason to dismiss anything the USCCB says as lacking any semblance of dispassionate rationality. Next, we will be hearing that pregnant women should not get food stamps as it might make it easier for them to purchase an abortion.
I don’t know that any in the pro-life movement have done so, but if you want to be consistent about the “money is fungible” argument, you can argue that no company that provides abortion coverage in any of its policies should get tax dollars, even if the tax dollars are helping to pay for a policy that doesn’t cover abortion. So, for example, since UnitedHealthcare provides abortion coverage in some of its policies, no poor woman receiving a government subsidy should be able to buy a policy from UnitedHealthcare, even if the policy she chooses has no coverage of abortion.
“Coming from the same people who vehemently argue that vouchers to catholic schools do not constitute government support of religion, the level of scrupulosity over the potential for indirect government support for abortion is laughable and I think sufficient reason to dismiss anything the USCCB says as lacking any semblance of dispassionate rationality. Next, we will be hearing that pregnant women should not get food stamps as it might make it easier for them to purchase an abortion.”
Hi, MEP, the voucher analogy is an interesting one, although I don’t believe vouchers work as you suggest. Generally speaking, there are no “vouchers to Catholic schools”. In the programs I’m familiar with, vouchers go from the issuing agency, not to a school but to parents, who then choose from a wide variety of options, such as Catholic schools, Evangelical schools, Lutheran schools, public schools in a variety of school districts, charter schools, and so on. This is why – as I understand it – vouchers pass Constitutional scrutiny, whereas direct payments to parochial schools may not.
In that regard, the notion of paying insurance-premium subsidies to heads of household, who then choose from a variety of insurance options, does seem analogous. If insurance-premium support for charter schools can be used to bolster the case for school vouchers, I’m all for it!
The food stamp analogy also doesn’t work. The bishops strongly support food stamp programs because food stamps feed the hungry. The bishops strongly support health care reform because there are many folks who need health care but can’t afford it. (If you also support health care reform, then you’re stuck in the awkward position of siding with people whom you believe to be sorely lacking in dispassionate rationality :-)). The bishops oppose subsidizing abortions because abortions are evil. There is nothing inconsistent about any of that.
In his (very good) summary above, Peter writes: “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 three main issues of concern—abortion, conscience rights for health care workers, and coverage for immigrants—it is clear that abortion remains the most difficult issue to resolve.”
Respectfully, I want to take issue with one aspect of Peter’s gloss of the letter. It is true that the letter calls for strengthened legislation in three major areas, but those areas are not summarized quite correctly here. The three main areas for which the bishops urge significant improvement (quoting from the bishops’ letter), with my comments in [square brackets]):
“1. Exclude mandated coverage for abortion,and incorporate longstanding policies against abortion funding and in favor of conscience rights.” [That single bullet actually encompasses three separate important issues].
“2. Adopt measures that protect and improve people’s health care.” [That seems to be the whole point of the exercise. But the legislation under consideration, while staggeringly expensive, would leave us far, far short of universal coverage - many millions of legal US citizens would still be without health care].
“3. Include effective measures to safeguard the health of immigrants, their children and all of society.”
I urge everyone to click on the link Peter provided to read this very brief and strong letter. Perhaps it will allay any fears of “single-issue bishops”. In fact, the bishops are bringing a broad and comprehensive set of concerns to this issue.
Jim – agree with your very careful and clear clarifications. thank you…..my poor expressions still remain because my experience is that when push comes to shove (which is what will happen behind closed doors in the conference committee), the bishops will find something wrong with the eventual compromise bill (my guess is – we all will).
But, they will condemn and pick out points such as federal funds for abortion (because that is their number one issue) while skipping over the “peace and justice” issues you have enumerated – complete coverage; better healthcare delivery; reducing costs to benefit the common good; coverage for immigrants.
Example – I doubt that they will condemn the final bill based solely on illegal immigrant non-coverage. Catholic social justice demands this but the political reality will be understood. Yet, when we get to abortion, the same reasoning and pluralistic society approach will not be used even when we have federal law in place since 1976 on abortion and the Hyde Amendment on federal funding of this. It just seems that the bishops’ push back falls apart at that crucial time.
Jim,
You are quite right. The bishops changed their phrasing a bit from an earlier letter and I think I conflated the two in my head. I’ve updated the post accordingly.
I think the main point the USCCB and the pro-life groups are trying to make is that while it would be best if nobody had an elective abortion, the next best thing is if fewer women have abortions. It follows naturally then, that of course a good way to reduce the number of abortions is to not have the federal government paying for them.
I read somewhere that around 30 percent of this nation’s hospitals are church-affiliated, and that the majority of church-affiliated hospitals are Catholic hospitals. No reasonable person can make the case that church-affiliated hospitals be forced to perform abortions when if fact the creed under which they operate considers abortion murder.
Likewise no reasonable person would say that a nurse or doctor who thinks abortion is murder, should be forced to participate in that which they consider to be an atrocity.
As for indocumentados, in addition to complying with Catholic social teaching, including them simply makes sense. Including the indocumentados should be a matter of routine; it is simply a part of practical Christianity.
Ken – you are mixing apples and oranges. Does not matter what the final bill says, it can not require or make catholic owned hospitals do abortion procedures. So, that will not change at all.
What is even more interesting is the large insurers premium and pre-existing unfairness if you are a woman or a single parent mom that may still have children. It is estimated that this gender bias causes some women to pay as much as 40% higher premiums for the same insurance coverage as a man their own age. There are unfair and non-common good issues all over the place.
In all of this catholic single issue talk, no one states the fact that 30% of all abortions or more are performed by catholic women. So, do bishops need a federal law to back up their on moral preaching? It appears that the church could do a great deal more to limit abortion than just preach the single issue as a black and white legality.
“What is even more interesting is the large insurers premium and pre-existing unfairness if you are a woman or a single parent mom that may still have children. It is estimated that this gender bias causes some women to pay as much as 40% higher premiums for the same insurance coverage as a man their own age. ”
Hi, Bill, I know you’re much closer to the insurance industry than I am, but on reading about the 40% differential here, my assumption would have been that it is based on actuarial data rather than gender bias. Is that not right?
“Example – I doubt that they will condemn the final bill based solely on illegal immigrant non-coverage. Catholic social justice demands this but the political reality will be understood. ”
You might be right – particularly if progress is made on other issues like abortion, conscience clauses and universal coverage for citizens.
I belong to the half-a-loaf-is-better-than-none school. In the same way, I support initiatives to reduce abortion, even if it doesn’t eradicate it completely.
Gender bias because the claims history (actuarial) would prove that, at times, women do cost more in terms of potential care. Yet, isn’t that why we have insurance – we spread the cost across all members who pay a premium. That does not appear to be the underwriting method for some insurance companies and their plans.
Bill, your comment is both interesting and misleading; “In all of this catholic single issue talk, no one states the fact that 30% of all abortions or more are performed by catholic women.”
Various popes have said repeatedly (just ask you local priest) that any Catholic who promotes or participates in performing abortions automatically ex-communicate themselves. That is straightforward enough and not difficult to understand.
Since the people who perform or participate in performing abortions – whether they realize it or not and whether they like it or not – have made the decision to leave the Catholic Church, they are no longer Catholic, and the 30 % figure is not correct; your statement is simply not true.
Since the people who perform or participate in performing abortions – whether they realize it or not and whether they like it or not – have made the decision to leave the Catholic Church, they are no longer Catholic, and the 30 % figure is not correct; your statement is simply not true.
Ken,
This is just laughable.
And by the way, the excommunication that results from procuring, performing, or assisting in abortion is lifted by going to confession. How can non-Catholics receive a Catholic sacrament?
Laugh all you like David.
Here is what I could find in the Catholic Catechism regarding abortion and ex-communication. Part three, section two, part of a long section pertaining to the Fifth Commandment. The portion you find so hilarious is under 2272:
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2271 – Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law:
You shall not kill the embryo by abortion and shall not cause the newborn to perish.75
God, the Lord of life, has entrusted to men the noble mission of safeguarding life, and men must carry it out in a manner worthy of themselves. Life must be protected with the utmost care from the moment of conception: abortion and infanticide are abominable crimes.
2272 – Formal cooperation in an abortion constitutes a grave offense. The Church attaches the canonical penalty of excommunication to this crime against human life. “A person who procures a completed abortion incurs excommunication latae sententiae,”77 “by the very commission of the offense,”78 and subject to the conditions provided by Canon Law.79
The Church does not thereby intend to restrict the scope of mercy. Rather, she makes clear the gravity of the crime committed, the irreparable harm done to the innocent who is put to death, as well as to the parents and the whole of society.
2273 – The inalienable right to life of every innocent human individual is a constitutive element of a civil society and its legislation:
“The inalienable rights of the person must be recognized and respected by civil society and the political authority. These human rights depend neither on single individuals nor on parents; nor do they represent a concession made by society and the state; they belong to human nature and are inherent in the person by virtue of the creative act from which the person took his origin. Among such fundamental rights one should mention in this regard every human being’s right to life and physical integrity from the moment of conception until death.”80