Abortion and the fraud of legislative precedents.

Abortion and the fraud of legislative precedents.

Abortion and the fraud of legislative precedents.

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Science, technology, and life.
Dec. 7 2009 11:03 AM

I'm With Stupak

Abortion and the fraud of legislative precedents.

Should the Senate respect the abortion funding compromise adopted last month by the House?

The House compromise, known as the Stupak amendment, forbids insurance plans that cover abortion from competing for federally subsidized customers under the new health insurance legislation. And since the legislation extends such subsidies to many millions of people, the Stupak amendment would correspondingly shrink the number of people eligible for abortion coverage.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Subcommittee Chairman Bart Stupak (D-MI).
Bart Stupak

In the next day or so, pro-lifers plan to introduce a duplicate amendment in the Senate. Their point man is Sen. Ben Nelson, D-Neb.. If the amendment doesn't pass, they'll be stuck with the bill's current abortion language, approved by Senate Majority Leader Harry Reid, which bars federal tax credits from directly funding abortion but lets women who receive such credits buy health insurance that covers abortion. Pro-lifers object to this arrangement on the grounds that it's an indirect abortion subsidy: You accept the tax credit with your left hand and buy abortion coverage with your right hand.

The U.S. Conference of Catholic Bishops calls the Reid language a violation of congressional precedent. In a letter to senators, the bishops argue that

it violates the longstanding federal policy against the use of federal funds for elective abortions and health plans that include such abortions—a policy upheld in all health programs covered by the Hyde Amendment, the Children's Health Insurance Program, the Federal Employee Health Benefits Program—and now in the House-passed "Affordable Health Care for America Act."

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Did you catch that last bit? The "Affordable Health Care for America Act"? That's the bill the House just passed. Pro-lifers are already invoking it as a precedent. And that's a big deal, because everyone in the health care fight, including President Obama, has agreed not to mess with congressional precedents on abortion.

Is Stupak a precedent worth respecting? If so, what rule does it establish?

The first thing to understand is that the other legislative measures the bishops cite in their letter—Hyde, CHIP, FEHBP—deal with government-run programs. In that respect, they aren't precedents for Stupak. Stupak is a whole new animal. It takes abortion restrictions that used to apply to government-run programs and extends them to partially subsidized but otherwise private insurance markets. It would limit abortion coverage options even for many women who draw no subsidies. That has never happened before. So if you're looking for precedents for the Nelson amendment, Stupak stands alone.

And what does it stand for? If you're pro-life, it stands for the principle that nobody should be forced to pay for abortions. The pro-life story is that the House, in a "bipartisan" vote, accepted this principle by adopting Stupak and the bill that included it.

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But how many House members were really thinking about Stupak that way? Stupak was a last-minute deal. It had maybe a dozen hardcore Democratic supporters. There were just enough of them to force Speaker Nancy Pelosi to accept the amendment. The other Democrats who went along with it were holding their noses and doing what they had to do to get the Stupak contingent to vote for the bill. It was raw politics.

For the House as a whole, this was the real meaning of the Stupak episode. It wasn't about morality. It was about vote counting. You do what you have to do to get the bill through.

And guess what? In the Senate, pro-choice Democrats don't necessarily have to accept the same amendment. The vote count is more favorable for them. Maybe they can buy off Nelson with a halfway deal, such as dropping abortion coverage from the public option. Or maybe they can attract one of the pro-choice Maine Republicans, Olympia Snowe or Susan Collins. Either way, they'd get the 60 votes they need.

Then where would we be? We'd be in a conference committee working out the differences between the House and Senate bills. On abortion, we'd have the Stupak precedent on one side, and the non-Stupak precedent on the other. We'd have two conflicting precedents. But in fact, they'd stand for the same thing: getting your way if you can.

That's the only precedent that really lasts.

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