Far from maintaining the Hyde Amendment limitations on federal abortion funding, the Harry Reid (D-NV) “manager’s amendment” on which cloture has now been invoked in the Senate would begin to tear down the firewall that individual taxpayers now enjoy in various federal programs not to participate in abortion funding; establish a line-item process so that employees in many states will see a special “abortion debit” on their pay check stubs; create new health insurance plans offered through the Office of Personnel Management (OPM), one of which will almost certainly offer elective abortions; and open up a 50-state battle on abortion funding that could lead to the all-or-nothing inclusion or exclusion of such funding in each state.
The language included in the bill is not the “Casey compromise” that was floated over late last week on Capitol Hill in an effort to garner the support of Ben Nelson of Nebraska, who offered the Nelson-Hatch amendment rejected by the Senate 54-45 on December 8. Casey’s amendment, which failed to break the deadlock over abortion funding in the Senate bill and was strongly opposed by the national right to life groups and the U.S. Conference of Catholic Bishops, included two features that have been omitted in Reid’s manager’s amendment: a codification of the House-approved Weldon conscience language and an individual opt-out from abortion coverage.
Instead, “opt-out” language applies only to entire states, setting the stage for fresh abortion funding battles in each state capital. State and federal abortion funding policies have been relatively stable for years, with federal funding governed by nearly two dozen laws that prohibit abortion funding, including the Hyde amendment, which allows such funding only under limited conditions in the Medicaid program, and another amendment prohibiting the inclusion of elective abortion in the hundreds of plans offered under the Federal Employee Health Benefits program (FEHBP). Just over a third of the states use their own money now to fund abortions for low-income residents. Under Reid’s manager’s amendment, with the inclusion of private-sector plans that offer abortion coverage in the state exchange programs and one OPM option at stake, each state will likely revisit its abortion funding policies under what could be an all-or-nothing scenario.
The language governing the new state opt-out provision could be read to mean that the state may opt out of abortion coverage only if it prohibits all such funding. Since no state in the Union now prohibits abortion funding when the life of the mother is at stake, the opt-out language could induce some or many states with “Hyde Amendment-type” language to drop their funding restrictions altogether.
In other respects, the Reid manager’s amendment today merely elaborates on the Rube Goldberg structure created by the Capps Amendment rejected in the House-passed health reform bill. But it does so with a twist. Because nothing in the manager’s amendment protects the individual’s right as established under current law not to fund elective abortions or plans that cover them, states where abortion coverage is assured through the exchange (and the number of such states, as noted above, could easily grow) will be required by the bill to set up a segregated funds system that will actually require enrollees to pay not less than $1 per month into an abortion fund under which elective abortions will be reimbursed. The “OPM option” in the bill will require each state exchange to have at least one plan that does not cover elective abortions, but the newfound powers of OPM could conceivably result in the “elective abortion” option being designed in far more favorable terms than the alternative that has no such coverage. OPM’s thumb will be on the scales.
In effect, many individuals who live in states that fund abortion will be required either to write a monthly check to the segregated abortion fund, or see a special line-item debit on their pay stub each month to underwrite elective abortions, right alongside their FICA and Medicare deductions. That fact alone illustrates how the Reid manager’s amendment, contra-distinct from the House-passed bill which contained the Stupak-Pitts comprehensive abortion funding limit, will institutionalize abortion funding as essential medical care. Even taxpayers who live in states that decide to continue their abortion funding limits will be subsidizing the management of abortion-inclusive plans in other states.
Effectively, the current FEHBP policy prohibiting all subsidies for plans that cover elective abortion will be cut in half. Federal involvement in the active management of plan options that include elective abortion and that may ultimately cover millions of Americans is the kind of breakthrough that will put the Hyde Amendment and other laws further down the ramp to extinction. This is not the result the authors and endorsers of the Stupak-Pitts amendment in the House signed on to achieve.