The Foundry

Last night Senate Majority Leader Harry Reid (D-NV) released the version of health care reform he hopes will be considered on the Senate floor. The new bill devotes eight of its 2,074 pages to policy governing abortion in the structure of state health care exchanges and the public option it creates. Rather than retain the House-passed Stupak-Pitts abortion funding limitation adopted with 240 votes, Reid reverts to a variation on an amendment the House deleted that would both foster coverage of elective abortion and diminish the conscience rights of insurers that do not wish to cover elective abortion.

Nearly two dozen limitations on abortion funding have been enacted, many on an annual basis, for decades. The federal Hyde Amendment governing the Medicaid program has been enacted every year since 1978 as part of annual appropriations for the Department of Health and Human Services (HHS). It permits Medicaid reimbursement to the states only when pregnancy poses a physical risk to the life of the mother and for instances of rape and incest.

Among the other key laws limiting abortion funding is one that affects the Federal Employees Health Benefits Program (FEHBP), the popular and successful consumer driven system of competing private health plans available to members of Congress, federal workers and retirees. For 25 of the past 27 years Congress has stipulated that no appropriated funds “shall be available to pay for an abortion, or the administrative expenses in connection with any health plan under the Federal employees health benefits program which provides any benefits or coverage for abortions.”

The Reid bill would overturn the FEHBP principle, authorize the HHS Secretary to create a funding scheme that will permit inclusion of abortion coverage in the bill’s public option (renamed the “community health insurance option”), mandate the inclusion of at least one plan with elective abortion coverage in each state’s health insurance exchange, and prohibit health insurers from “discriminat[ing] against” an individual provider or facility because of its “willingness . . . to provide, pay for, provide coverage of, or refer for abortions.” This provision is labeled a “provider conscience protection,” but it represents a weakening of the Stupak-Pitts language which passed the House overwhelmingly and was designed to permit religious providers to avoid any entanglement at all with physicians or entities that perform or refer for abortions.

The Reid bill also states that none of its provisions preempt state laws regarding abortion, particularly those affecting parental notice and consent before an abortion is performed. It also states that it does not affect other provisions of federal law regarding abortion, including the annual Hyde Amendment and existing conscience laws (though federal regulations implementing and enforcing those conscience protections remain suspended and the Obama Administration has stated its intention to rescind the regulations completely).

Moreover, because of the bill’s design, any change to the annual Hyde Amendment language, or failure to include it in a future annual HHS appropriation, will require no further action by Congress to include elective abortion in the public option. The bill cements into law the ability of the Secretary of HHS to fund any abortions not specifically covered by the annual Hyde limitation. The Stupak-Pitts amendment, included in the House-passed bill, would, in contrast, make the Hyde limitation permanent.

Finally, it is worth noting that the Reid bill directs the Secretary of HHS to complete a “periodic update” of essential benefits for qualified health plans. This analysis must take into account any “benefits typically covered” by private insurers. This language could result in the inclusion of elective abortion as an “essential benefit” in all qualified health plans if a future Congress eliminates the Hyde Amendment language.