Abortion foes and Rep. Bart Stupak meddle with private health insurance.

How to fix health policy.
Nov. 4 2009 7:12 PM

Don't Be Stupak

Abortion foes meddle with private health insurance.

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Rep. Henry Hyde, R-Ill. Click image to expand.
Rep. Henry Hyde, R-Ill.

There is very little to like about private health insurance as it exists today in the United States, but it does have one advantage over health insurance funded by the federal government: You can use it to pay for an abortion. Now antiabortion groups and their allies in Congress want to whittle away at that distinction. The vehicle is the health care reform bill.

Under health reform, the uninsured would be required to purchase health insurance through a federally established exchange in which private insurers and, possibly, a "public option" government insurance program would compete to sell policies. Federal subsidies would be made available to make the premiums more affordable to people at low incomes who are ineligible for Medicaid. The House bill and the Senate finance committee bill (which reportedly will make up the bulk of Sen. Harry Reid's "blended" Senate bill) both state explicitly that health reform would not undo current prohibitions on federal funding for abortions. Contrary to popular belief, there is no single blanket prohibition on such funding, but rather a thicket of individual prohibitions. These started with the 1976 Hyde Amendment's ban on the funding of abortions through the Health and Human Services Department (which applies mainly to Medicaid). They continued later with separate prohibitions imposed on public health insurance programs for the military, for veterans, for federal employees, for Native Americans, for federal prisoners, and for Peace Corps volunteers.

Since health reform is funded through the Health and Human Services Department, no health-reform funds would pay for abortions. But abortion opponents are worried that other funds raised through the payment of insurance premiums would pay for abortions. The Senate finance bill explicitly allows for that possibility. As the plain-English version of the bill (prior to its translation into legislate-ese) makes clear, a private health plan participating in an exchange "would not be prohibited … from providing coverage for abortions beyond those for which Federal funds appropriated for the Department of Health and Human Services are permitted [i.e., in the case of pregnancies involving rape or incest or that threaten the mother's life]." Seventeen states currently do much the same for the Medicaid program—which is funded by both the federal government and the states—by segregating state funds used to pay for abortions from federal funds which, by law, may not.

Abortion foes argue that this distinction is nonsensical with respect to a public option, because even if it eventually were self-sustaining financially, as promised, it would still be a federally managed program created with federal funds. They have a point. But Sen. Joe Lieberman and others have thrown up hurdles to its enactment so daunting that it seems pointless to engage this argument. (And anyway, it's not entirely clear to me that the House public-option provision as written permits abortion coverage.)

More worrying is abortion opponents' desire to use health reform as a crowbar to pry abortion coverage from private health insurance plans offered in the exchange. Their vehicle for doing this is an amendment that was offered by Rep. Bart Stupak, D-Mich., during House markup in the energy and commerce committee. Elsewhere, Stupak has done praiseworthy work on health care reform in exposing the ghastly practice of "rescission," in which private insurers don green eyeshades to deny benefits to policyholders after they become sick. In this instance, though, Stupak is working to make health reform not better, but worse.

Stupak's amendment failed in committee, but Stupak is fighting to incorporate it into the bill. The Stupak amendment stated, "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 [italics mine] that includes coverage of abortion," with exceptions for rape, incest, or a threat to the mother's life. Stupak claims that all he was doing was repeating the language of the Hyde amendment, but the italicized language quoted above does not appear in the Hyde Amendment. (And besides, even if that were all Stupak was doing, his amendment eliminates the possibility that future repeal of the Hyde Amendment might liberate health reform from its prohibition.) "Stupak is basically saying you cannot even participate in the exchange unless your plan does not cover abortion," Nancy Keenan, president of NARAL Pro-Choice America, told the Los Angeles Times.

Granted, money is fungible. Federal money that a private health insurance plan doesn't spend on abortions frees up nonfederal money that it does. But as Time's Amy Sullivan recently noted, not even Focus on Family meets Stupak's exacting standard. Principal, the health insurer for the Christian-right group's employees, covers abortions. "Even if the specific plan Focus uses for its employees doesn't include abortion coverage—and I'm assuming it doesn't—the organization and its employees still pay premiums to a company that funds abortions," Sullivan wrote. "If health reform proposals have a fungibility problem, then Focus does as well."

A not-implausible goal for the health exchanges is that they might eventually displace employer-based health care. Even if that doesn't happen, maintaining for private insurers the ability to offer coverage for abortions should be a matter of no small urgency to anyone who believes abortion ought to remain widely available.

E-mail Timothy Noah at chatterbox@slate.com.

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