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Posted by J. Peter Nixon on dot­Com­mon­weal, the Blog of Com­mon­weal Mag­a­zine
October 14, 2009

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.