Why Stupak Is Wrong
The Senate bill doesn't fund abortions. Here's why he thinks it does.
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A central puzzle of the health reform debate is why Rep. Bart Stupak, D-Mich., keeps saying that the Senate-passed bill allows taxpayer dollars to be spent on abortions. The U.S. Conference of Catholic Bishops says it, too. This dispute concerns (or at least pretends to concern) matters of fact, not belief. The question of whether the government funds a given medical procedure is not like the question of whether human life begins at conception. It's empirical, not ideological. And Stupak happens to be wrong. Stupak's and the bishops' claim is important because abortion is the single likeliest issue to scuttle the bill. Stupak says that "at least" 12 pro-life House members who previously voted aye on health reform, including himself, will vote against President Obama's package, which is based on the Senate bill, unless it contains abortion language that he inserted into the House bill. The trouble is, Stupak's language can't be shoehorned into President Obama's package, because it's nonbudgetary and therefore ineligible for inclusion in a budget reconciliation bill. Republican Scott Brown's Massachusetts Senate victory made reconciliation the only possible vehicle for passing health care reform.
If House Speaker Nancy Pelosi loses a dozen pro-life votes, then health care reform will fail. Already health reform's five-vote House victory margin in November is down to three due to the resignations of three representatives and the death of a fourth. Take away just Stupak and Rep. Joseph Cao of Louisiana (the only Republican who voted aye, who is similarly threatening an abortion-based nay vote), and health reform lacks even that narrow majority. Pelosi may pick up a few Democrats who voted against the bill last time, but it's extremely doubtful that she can pick up 11, which is what she'd need to compensate for losing 12. (That's before we even consider possible attrition among Blue Dog Democrats who voted aye last time, or the possible resignation of the pro-reform Rep. Charles Rangel, D-N.Y., who's in hot water for breaking the House gift rule and just gave up the chairmanship of the House ways and means committee.)
Given these stakes, it's worth making some effort to find out what led Stupak and the bishops to think that health reform would spend federal funds on abortion.
"If you go to Page 2069 through Page 2078 [of the Senate bill]," Stupak told George Stephanopoulos on March 4 on Good Morning America, "you will find in there the federal government would directly subsidize abortions, plus every enrollee in the Office of Personnel Management-enrolled plan, every enrollee has to pay a minimum of one dollar per month toward reproductive rights, which includes abortions." Stupak is here referring to the exchanges created under health reform and to a nonprofit plan managed by the Office of Personnel Management that would be sold through the exchanges. The latter was a consolation prize to supporters of a public-option government health insurance program that didn't make it into the bill.
Let's go to Page 2069 through Page 2078 of the Senate-passed bill. It says, "If a qualified plan provides [abortion] coverage … the issuer of the plan shall not use any amount attributable to [health reform's government-funding mechanisms] for purposes of paying for such services." (This is on Page 2072.) That seems pretty straightforward. No government funding for abortions. (Except in the case of rape, incest, or a threat to the mother's life—the same exceptions granted under current law.) If a health insurer selling through the exchanges wishes to offer abortion coverage—the federal government may not require it to do so, and the state where the exchange is located may (the bill states) pass a law forbidding it to do so—then the insurer must collect from each enrollee (regardless of sex or age) a separate payment to cover abortion. The insurer must keep this pool of money separate to ensure it won't be commingled with so much as a nickel of government subsidy. (This is on Pages 2072-2074.)
Stupak is right that anyone who enrolls through the exchange in a health plan that covers abortions must pay a nominal sum (defined on Page 125 of the bill as not less than "$1 per enrollee, per month") into the specially segregated abortion fund. But Stupak is wrong to say this applies to "every enrollee." If an enrollee objects morally to spending one un-government-subsidized dollar to cover abortion, then he or she can simply choose a different health plan offered through the exchange, one that doesn't cover abortions. (Under the Senate bill, every insurance exchange must offer at least one abortion-free health plan.)
One dollar exceeds health insurers' actual cost in providing abortion coverage. In fact, it's entirely symbolic. The law stipulates that in calculating abortions' cost, insurers may consider how much they spend to finance abortions but not how much they save in foregone prenatal care, delivery, or postnatal care. (This is on Pages 2074-2075.) This is to keep insurers from pondering the gruesome reality—one they surely know already—that covering abortions actually saves them money. For health insurers, the true cost of abortion coverage is less than zero, because hospitals and doctors charge less to perform abortions than they do to tend pregnant women before, during, and after childbirth. (Ironically, only the Senate bill—not the House bill—provides some small counterweight to this calculus by increasing aid for adoption assistance.)
What really rankles Stupak (and the bishops) isn't that the Senate bill commits taxpayer dollars to funding abortion. Rather, it's that the Senate bill commits taxpayer dollars to people who buy private insurance policies that happen to cover abortion at nominal cost to the purchaser (even the poorest of the poor can spare $1 a month) and no cost at all to the insurer. Stupak and the bishops don't have a beef with government spending. They have a beef with market economics.
Another matter that rankles Stupak and the bishops is that the ban on federal funding for abortions in the Senate bill is tied to the fate of the Hyde Amendment. A common misconception is that the government's ban on abortion funding through the Hyde Amendment (which covers spending by the Health and Human Services Department, chiefly through Medicaid; other laws ban abortion funding through other government agencies) has the force of permanent law. It does not. It is merely a rider routinely attached to annual appropriations bills. Should the appropriations committees in Congress decide one year not to attach it, then HHS will become free to fund abortions. Pro-lifers live in fear that this will happen, but they don't want to draw too much attention to the possibility, lest they discourage the public from thinking the Hyde Amendment is writ in stone. If Congress ever did tire of the Hyde Amendment (which at this point has outlived Hyde), Stupak wouldn't want to see abortion restrictions evaporate from health reform, too. But that's exactly what would happen under the Senate bill. Its legislative language deliberately defines abortion "based on the law [governing HHS appropriations] as in effect as of the date that is six months before the beginning of the plan year involved." (This is on Page 119.) No HHS prohibition, no rules against federal subsidies for abortions through health insurance exchanges. The bishops state this bluntly: "[A] reference to this annual rider is far less secure than the House bill's permanent provision."
Stupak is a bit more coy about this. His amendment prohibits government subsidies to anyone purchasing health insurance through the exchanges if that insurance covers abortion. To Stupak, it doesn't matter that the Senate bill already prohibits any federal dollars from paying for abortions. "Our amendment maintains current law," he has written, "which says that there should be no federal financing for abortion." This is wrong on two counts. Current law doesn't care one way or the other whether private insurers cover abortion. And to the extent it cares about government funding for abortion, it doesn't ban it forever. It bans it for this year.
In a better world, Stupak and the bishops believe, the federal ban on taxpayer-financed abortions would be permanent. It's true that the Senate-passed bill is at odds with this Platonic ideal. But the bill is completely consistent with the earthbound status quo. Why can't they accept that?
E-mail Timothy Noah at firstname.lastname@example.org.
Timothy Noah is a former Slate staffer. His book about income inequality is The Great Divergence.
Photograph of Rep. Bart Stupak by Tim Sloan/AFP/Getty Images.