There is NO REAL DIFFERENCE between the House and Senate Bills on Abortion
Let’s nail this one down. This time, I won’t point out past hypocrisies by those who oppose this healthcare bill because of abortion and yet supported far more lenient language in the past (I’m looking at you, NRLC…). This time, let’s look at what’s actually in the bill. And to do this, I will lean heavily on a detailed analysis by leading health lawyer Timothy Jost, courtesy of our friends at Faith in Public Life – I’m going to take the easy road and pretty much reproduce his post, as it covers everything in a succinct manner. The bottom line is that there is hardly any difference between the two bills, and in some respects, the Senate bill is actually stronger.
What the House and Senate bills have in common:
• Prohibit the use of premium affordability tax credits or cost-sharing reduction payments to pay for abortions that are not covered by Medicaid.
• Prohibit qualified health plans from discriminating against providers or facilities because of their unwillingness to
provide to pay, provide coverage, or refer for abortion. Senate also requires the Office of Personnel Management to assure that at least one of the multi-state plans does not cover non-federally-covered abortions.
• Explicitly do not preempt any state laws regulating abortion.
• Explicitly do not change federal law regarding conscience protection or willingness to provide abortion.
• Provide that qualified health plans may not be required to provide abortion as an essential service.
• Leave federal funding for other programs, such as the Medicaid, Medicare, and Federally Qualified Community Health Centers subject to the Hyde amendment. Provide no funding for new programs that cover abortions — Senate bill specifically states that funds authorized for the new school-based health center program cannot pay for abortions.
• Prohibit federal agencies and programs, and state and local governments that receive federal funding, from discriminating against health care providers or professionals on the basis of their unwillingness to provide, pay, provide coverage or refer for abortion (House explicitly, Senate by incorporating Hyde Amendment provisions).
The issue of community health centers
The Senate bill creates a Community Health Center Fund, and funds it with $7 billion. Community health centers are critical – last year, they provided prenatal, perinatal, and post-natal care to one in eight children. It is an initiative that pro-lifers should applaud. But the noise machine is saying that this money will be used to turn community health centers into abortion factories. No chance. Here’s Professor Jost:
“Because this funding is not just authorized but also appropriated by the bill, it has been argued that it is not subject to the Hyde amendment provisions of the annual HHS appropriations act. The Senate bill, however, provides that this funding is to be transferred to HHS accounts to increase funding for community health centers and does not provide for segregating these funds. Since all other HHS funding, including expenditures from trust funds, is subject to the Hyde Amendment, these funds cannot be used to pay for abortions.”
Where the House and Senate bills differ
o House – if a health plan is purchased using federal support, abortion coverage must be purchased with private funds under a separate supplemental policy. Senate – if federal premium credits or cost-sharing reduction payments are used to purchase a health plan, the plan must collect a separate privately-paid premium to cover the abortion coverage from the enrollee or enrollee’s employer. The amount of the premium must fully cover the cost of the abortion coverage and may not take into account savings from not having to pay for prenatal care, delivery, or postnatal care when abortions take place. The funds must be kept in a separate account used solely for abortion coverage. State insurance commissioners must ensure that health plans comply with the segregation requirements in accordance with generally acceptable accounting principles and circulars on funds management from the OMB and GAO. Concern has been expressed that plans might use accounting practices that, despite this oversight, allow them to subsidize abortion coverage from federal funds, but if they want to do this for some reason, they could also do it under the House bill. Requiring a separate abortion policy rather than a separate premium is an administrative technicality. It merely requires one more piece of paper. It has also been argued that employees of small businesses will be forced by their employers to pay for abortion coverage through the exchange, but under section 1312 of the Senate bill, an employer cannot choose a health plan for an employee, employees are free to choose their own plan within a tier of coverage specified by the employer. No one will have to purchase abortion coverage under the Senate bill who does not want it, just as under the House bill.
o Second, the Senate bill goes beyond the House bill in permitting the states to absolutely prohibit the sale of plans through the exchanges that cover abortion. That is, under the Senate bill, a state may prohibit not only plans that receive a public subsidy from covering abortion, they may also prohibit plans that do not receive a public subsidy but are sold through the exchange from covering abortion. The CBO estimates that 6 million Americans will purchase unsubsidized plans through the exchanges. The House bill does not explicitly allow the states to do this.
o Third, the Senate bill, but not the House bill, prohibits plans from advertising the separate cost of their abortion coverage. This provision is presumably intended to keep plans from competing with each other by making abortion coverage attractive.
o Fourth, the Senate bill, but not the House bill, provides for $25 million a year in grants to the states for assisting pregnant and parenting teens and women. These grants would go to institutions of higher learning, high schools, and community centers that offer pregnant and parenting teens and women the support that they need to get an education and to function.
Conclusion
These two bills differ, but not because of abortion. Both bills prohibit federal funds from being used to purchase abortion, albeit with different approaches. With The House bill, you can still purchase abortion on the exchange with a supplemental policy. With the Senate bill, you use a separate premium. It’s different only in an accounting sense, and the issue of money being fungible applies to both cases.
While the House (Stupak) approach is easier to understand and possibly cleaner, it is not necessarily much better. The Senate bill allows states to ban all insurance plans that offer abortion – there is no such language in the House bill, which always allows people to use their own money to buy a supplemental policy. The Senate bill requires all who purchase a plan with abortion to make a supplemental payment – even those that get no subsidies at all. This is arguably stronger. So let’s not be bamboozled by those who seek to use the unborn to kill vital healthcare reform.
Really interesting blog! Thanks for posting :)
So let’s not be bamboozled by those who seek to use the unborn to kill vital healthcare reform.
I agree. The USCCB for far too long has tried to hide its hatred of health care underneath opposition abortion.
Oh wait…
Actually, the USCCB has been misled by the the pro-life movement on this one. But you have a disagreement with the content on this post, Michael?
I have to say the Democratic Senator of New York thinks there is a big difference
http://www.nydailynews.com/blogs/dc/2010/03/gillibrand-runs-against-stupak.html
MM:
I have worked closely with USCCB for years and I don’t ever recall them being misled by NRLC or any pro-life organization. I guess it is something that I cannot prove, but I have to say it.
As far as what USCCB says about the bill – and I have never known Richard Doerflinger to be wrong on such things – see this: http://ndcatholic.org/latestnews/wordpress/wp-content/uploads/2010/03/onepageAbortionFundingfinal.pdf
JH: Part of the problem is politicians on all sides making claims that are simply not backed up by the legislative language. It’s far worse on the right (“government takeover of healthcare”, “abortion mandates”) but people on the left like people Pelosi and Sibelius have also made misleading statements related to abortion coverage in the past – whether out of actual ignorance or an attempt to bamboozle the pro-choice crowd I do not know.
CTD: I hate to say this, but Doerflinger is wrong on each of the four bullet points in your attached pdf document.
(1) He says the funds appropriated for the community health centers can fund abortion. Not so – see the point in the post above.
(2) Federal plans subsidizing plans that cover abortion. Again, not so. The separation of funds might not be very clean, but the person choosing a plan with abortion must pay a separate premium covering the exact gross cost of abortion coverage. Under Stupak, you can do it by purchasing a supplemental policy. Is there really a huge difference between a supplemental premium in the same policy and a supplemental policy? The costs are the same, the proximity of funds to abortion is the same – the only difference is the accounting framework.
(3) The fact that the supplementary premium is mandatory for all who choose the plan. This is true, but anybody who objects can easily choose a plan that does not cover abortion. The Senate bill grants such a choice, which is more than I can say for those under employer insurance – here, you are indeed forced to (in Doerflinger’s language), “pay for other people’s abortions”. And there’s more – this payment applies to everybody in that plan, even those who don’t receive subsidies. Under Stupak, those who don’t get subsidies face no restrictions on abortion coverage. My guess? Very few will choose plans with abortion. As Michael Sean Winters puts it, “the didactic value of making many, many people write a separate check every month will bring home as nothing else that abortion is not health care.”
(4) He says the House follows current law. But as Tim Noah shows clearly, this is wrong. The Stupak amendment would put these restrictions into permanent law. The Senate bill instead relies on the Hyde amendment, which must be re-adopted every year. That might not be perfect, but it is the status quo.
It’s deeply disappointing that Doerflinger is playing right into the hands of the opponents of healthcare reform by making these points.
1) He says the funds appropriated for the community health centers can fund abortion. Not so – see the point in the post above.
I think USCCB, which also has a team of skilled lawyers, has this right. The funds in the bill for the community health centers is an appropriation. Merely transferring funding to HHS does not make it an HHS appropriation subject to the Hyde Amendment. The Hyde Amendment applies to specific appropriations, not the department. In any event, the difference between the two bills is that the Stupak Amendment clearly prohibits use of any funds appropriated in the bill to be used for abortion, thus encompassing community health centers. One of the problems with the Senate bill is that its prohibits are too narrow.
(2) Federal plans subsidizing plans that cover abortion. Again, not so. The separation of funds might not be very clean, but the person choosing a plan with abortion must pay a separate premium covering the exact gross cost of abortion coverage. Under Stupak, you can do it by purchasing a supplemental policy. Is there really a huge difference between a supplemental premium in the same policy and a supplemental policy? The costs are the same, the proximity of funds to abortion is the same – the only difference is the accounting framework.
The USCCB fact sheet makes the difference pretty clear. I am not sure why you contend there is no difference. Under the Senate bill subsidies can be used to cover the cost of policies that cover abortion. The Stupak language does not allow that.
(3) The fact that the supplementary premium is mandatory for all who choose the plan. This is true, but anybody who objects can easily choose a plan that does not cover abortion. The Senate bill grants such a choice, which is more than I can say for those under employer insurance – here, you are indeed forced to (in Doerflinger’s language), “pay for other people’s abortions”. And there’s more – this payment applies to everybody in that plan, even those who don’t receive subsidies. Under Stupak, those who don’t get subsidies face no restrictions on abortion coverage. My guess? Very few will choose plans with abortion. As Michael Sean Winters puts it, “the didactic value of making many, many people write a separate check every month will bring home as nothing else that abortion is not health care.”
The issue here is not whether making people write a separate check has value in changing public opinion about abortion. The problem with the Senate language is that it directly compels people to violate their conscience. It is not sufficient to contend the problem is made moot because states can opt out of abortion coverage or that exchanges must provide at least one abortion free policy.
The entire reform package is supposed to preserve choices in the insurance market. Opponents of abortion should be forced to choose the one policy in the exchange that does not cover abortion. They should be able choose the policy that best fits their family’s needs without being forced to pay a separate premium for abortion.
Here again, one can attempt to diminish the importance of this problem, but the fact remains that it is not a problem in the House version.
(4) He says the House follows current law. But as Tim Noah shows clearly, this is wrong. The Stupak amendment would put these restrictions into permanent law. The Senate bill instead relies on the Hyde amendment, which must be re-adopted every year. That might not be perfect, but it is the status quo.
The question is not whether the bills reflect the status quo in legislative process or even abortion coverage in practice. The position of USCCB is that federal health care reform should preserve the status quo with regards to federal policy. The Senate bill falls short in this regard more than the House bill does.
Minion:
Actually, the USCCB has been misled by the the pro-life movement on this one. But you have a disagreement with the content on this post, Michael?
I did read the post. It wasn’t persuasive and dealt in assertions. Nothing meriting a response. I read too much law to quickly accept assertions w/o either trusting the source or seeing the law itself. Maybe I’m being harsh, but I think I’ll continue to trust the USCCB’s guidance on this one b/c they’re not partisan and you are. Sorry.
Like I’ve said before, I’d like to see some reform (though like USCCB, I’d like some conscience protections & care for immigrants, though the latter seems to be a lost cause) but they need to fix the abortion issue and it’s an easy one to fix. I’m hopeful the news we heard today means the Dems are moving in that direction (maybe including the pros of both the House & senate bill, maing a more pro-life bill than either current version) but the Dems allegiance to protecting abortion is not making me trustful.
Great — then the Senate can just pass the House version, and we can all move on!
But as Tim Noah shows clearly,
So we should trust Tim Noah, who is pro-choice, seemed to think Pope Benedict should change Church teaching to accommodate this bill, and thinks the Church should grant Senate rules the same respect as Church teaching, but the Bart Stupak and the USCCB are dupes and liars?
Great — then the Senate can just pass the House version, and we can all move on!
No problem from me – the house version has a public option and better subsidies! Unfortunately, we have to live with a bizarre political system where an upper house giving disproportionate representation to less populated areas wields disproportionate power.
I quote Tim Noah not because of his understanding of moral theology, but because he references the actual bill when he makes his point – and in this particular case, he links to the bishops backing up his main point that a permanent law is better than the annual Hyde amendment rider.
Addressing CTD’s response:
(1) But the bill says that this funding is to be transferred to HHS accounts, which is under Hyde amendment. The new funding will be mixed with the current funding that comes from HHS, so it would be very difficult (and weird) to start segregating this to provide abortions. And anyway, the community health centers do not provide abortion! Here is the statement of the National Association of Community Health Centers:
“Existing Health Centers…do not provide abortions to any of their patients, and we are not aware of any that have ever done so. Health Centers do not plan to, nor are they seeking to, become providers of abortion. On the contrary, last year health centers provided prenatal, perinatal, and post-natal/post-partum care to 1 of every 8 children born in the U.S.
Given that both the new Community Health Center Fund dollars and current annual appropriations funding will be used in combination by HHS to fund Health Centers, we would expect that the current “Hyde” prohibition would continue to apply to all Health Centers and their operations.”
This seems clear to me.
(2) Under the Senate bill subsidies can be used to cover the cost of policies that cover abortion. The Stupak language does not allow that.
This is not true. The legislation says specifically that “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”. Now, the issue you are getting at is the proximity of funds to plans that offer abortion. But even Stupak allows people to use their own money to purchase abortion – with his approach, it’s a supplemental policy rider, not a seprate premium in the same policy. We can argue the merits of each, but come on, there is not really much difference!
(3) I don’t get your point here. Would it be OK to purchase a plan that covers abortion without paying a separate premium for abortion? Let’s take a simple example. Say your premium is 100. Say that abortion coverage costs 5 (I’m just making up numbers). In one case you could write a check for 100. In another, you write two checks, one for 95 and one for 5. In both cases, your premiums are paying for abortion coverage. The latter is at least fully transparent. And as I said, even people without subsidies need to do this breakdown. Stupak does not provide for this.
The broader point is should one pay premiums for abortion coverage? I would say no. But now we are moving far beyond the question of federal subsidization of abortion, aren’t we? We are talking about private insurance in the private sector. The vast majority of people in employer-based insurance do not have the luxury of conscience in this area – you take what you’re given. At least with the exchanges on the individual market, you can always choose a plan that doesn’t have abortion (and my bet is that abortion coverage will be very rare, with all the attention focused on it).
(4) It preserves the status quo with respect to the Hyde amendment. It does not preserve the status quo in that it covers more than 30 million more people with private insurance.
It is amazing how MM has thrown the USCCB under the bus since they don’t support this bill. Deceived by the pro-life groups. You sir are a desperate man. Seibelus is congratulating herself that the Senate bill covers abortion and Pelosi continues to reassure her constituents that abortion is in the bill.
Given that both have been pro-abort zealots in the past and the constant firestorm about the Stupak amendment, methinks that abortion funding is in the bill and we should stand with the USCCB.
Besides abortion, there is no protection for conscience rights. This is another major concern that simply goes unmentioned by proponents. The woes of Catholic Charities in D.C. should serve as a warning that the law must protect the rights of conscience of doctors.
Politifact says there is funding for abortion in the bill through reimbursment.
Face it, MM. The argument is lost. As long as you continue the smoke screen, the dream of Universal Health Care is a dead end. I suggest trying to direct your energies to work with the USCCB to argue for inclusion of the Stupak admendment rather than try to get the prolife Dems to roll over.
Until the unborn are protected, “universal health care” under this bill is a lie.
Strange that all the abortion advocacy groups have joined hands in the stopstupack.com coalition, but they have hardly said a word about the every-bit-as-prolife Senate alternative. Could it be that they haven’t read all the wisdom on this subject that has been coming our way from the Obamist Democrats and their allies in the liberal Catholic blogosphere?
I won’t respond to all the points, but I do want to mention that there is a great difference between:
(1) being forced by law to pay for abortion coverage because the policy that best fits your family’s needs includes abortion (Senate bill) and
(2) Not ever being required to pay for abortion coverage (House bill).
You assume the Senate bill is better than the existing situation since many plans already cover abortion. However, we are talking about a new health care paradigm. No matter which bill passes, almost all policies will participate in the exchange. Under the House scenario, none of those would cover abortion. Abortion would only be covered by a separate rider, which is how it works in my state. The House version, therefore, is really a scenario in which we would never be compelled to pay for abortion.
Under the Senate bill, plans would cover abortion and you must either pay that separate premium or forfeit your choice of plans.
Perhaps the Senate bill is better than the existing situation, but with regards to this issue the House bill is much better, and significantly different from, the Senate bill.
It preserves the status quo with respect to the Hyde amendment. It does not preserve the status quo in that it covers more than 30 million more people with private insurance.
Now you are mixing issues. The question posed with this post was whether there was a real difference between the House and Senate bills regarding the abortion provisions. The status quo point was raised because, according to USCCB, the House bill, not the Senate bill, maintains the status quo on federal abortion policy. We were not talking about the status quo of how many people would be covered.
But since you bring it up, the House bill is again better than the Senate bill in both the number of people covered and the affordability of coverage. The USCCB has fact sheets on this as well.
Colin, read the language, not what Sibelius have Peliso have said. They’ve both made misleading statements in the past. At least CTD is arguing with me on the merits of what’s in the bill…
CTD: I do take that point. I would still say that all people can choose a pro-life plan, and I seriously doubt each exchange will have only one option (I think most plans will not include abortion – nobody will want to bother with multiple payments). You are right that the House bill gives peoples a broader range of pro-life choices, even if its segregation of federal funds from abortion is not that different. But let’s not discount the areas where the Senate bill is better.
I hear that Bart Stupak is now negotiating some tightening of the language. I have no idea what is on the table, but I’ll support it. I’ll cheer it! As I said, I want to see the day when no private insurance plan covers abortion, anywhere. Because abortion, being in direct violation of the Hippocratic oath, is not healthcare. But that is ultimately a separate issue from the current reform.
On the issue of being “forced” to buy a policy that covers abortions, I would note that Stupak applies to subsidized policies. Thus, those who earn enough money will be forced even under Stupak to pay for other people’s abortions if the policy is the best fit. The Senate bill is better here because it applies to everyone on the exchanges and by forcing the separation of premiums, you can’t inadvertently chose such a policy. It seems clear that insurers will never offer only an abortion providing policy with this setup, they will always offer two policies side by side or only a no abortion policy.
I guess I don’t understand the idea of a policy being the best fit for someone who is pro-life, except for the fact it provides abortions. That fact is either disqualifying or not relevant, but there seems to be an argument that its not disqualifying but otherwise important and I can’t see how that’s true.
Colin, read the language, not what Sibelius have Peliso[sic] have said. They’ve both made misleading statements in the past.
Don’t we, as Catholics, have a primary duty to stand up for the truth?
I eagerly await the angry post from MM blasting Speaker Pelosi and Secretary Sebelius for their deception. If Republicans are supposed to hold their candidates accountable for exaggerations during an election campaign, surely pro-life Democrats should hold members of their party accountable when, in office, they mislead the public on a grave matter like abortion.