At first, it seemed like abortion-rights activists could count on their allies in Congress. When the House of Representatives voted to approve the Stupak amendment in early November, prohibiting plans on the public exchange from covering abortion, abortion-rights groups reacted with immediate outrage and activism. On Dec. 2, strong supporters of abortion rights—congresswomen such as Patty Murray, Barbara Boxer, and Lois Capps—gathered at a rally, surrounded by women in pink with STOP THE ABORTION BAN! signs. They both spoke out against the language. "I am one who cannot even envision voting for health-care reform that takes us back on women's rights," Capps told a cheering crowd.
But now there is fissure between pro-choice leaders inside and outside of government. When Harry Reid delivered his manager's amendment Saturday morning, introducing abortion language more restrictive than the original Senate bill but less so than the House version, a familiar round of outraged statements from groups supporting abortion rights followed, denouncing the new constraints. And a similar crowd of congresswomen once again gathered. Except this time, they were not rallying activists to oppose the new restrictions. Instead, on a Monday-morning conference call organized by Sen. Barbara Boxer, supporters of abortion rights, including Reps. Lois Capps, Rosa DeLauro, Jane Harman, and Dianna DeGette, were assured by Boxer that these new restrictions were not a threat they needed to unite against—the bill was a true compromise for each side, one that had to be made in order to move health-care reform forward.
When the Stupak amendment passed, there was common outrage among pro-choice organizations and their counterparts in Congress. But this time, it's different: while leaders of pro-choice groups call the Nelson language "outrageous" and "absurd," a number of their strongest supporters in Congress are taking a nuanced stance: we don't love it, we don't even like it, but if this is what it takes to move forward with health-care reform, we will live with it.
"I had confidence," says Capps, a Democrat from California, who has played a key role in crafting abortion language in health-care reform, discussing the Boxer call. "The language was vetted very carefully to take the topic off the table, to be neutral." Capps is by no means happy with the language—she'd rather return to the original proposal in the Senate, which guaranteed that each state exchange would have one option covering abortion, one that did not, and no federal funds used for the procedure. But, she says, "everyone who went out the door [of the negotiations was] able to support moving the bill. I commend that effort. It's not as egregious as the Stupak language."
Senators came to the Nelson compromise language after more than six hours of tense negotiations in MajorityLeader Harry Reid's office: Boxer and Murray in one room, Ben Nelson in another, with Reid and Chuck Schumer acting as go-betweens. They haggled over whether states would have to opt-in to abortion coverage on their exchange or opt-out, ultimately settling on an opt-out provision.
To address Nelson's concerns over federal funds, Boxer and Murray agreed to a plan requiring insurers to collect separate payments from subscribers to cover abortions. Here's how the newly proposed segregation system would work: insurers that wanted to cover abortion would be required to collect two payments from every enrollee. One would go into a general fund, one would go into a fund that exclusively covers abortion. Every enrollee in a plan covering abortion—male or female, regardless of whether they wanted abortion coverage—would need to pay into both funds, the idea being the separate payment is not a rider but rather a standard part of the premium that must be paid separately. Insurers would be barred from advertising the breakdown of payments: in promotional materials, one would only see the lump sum premium payment advertised. Enrollees would learn of the breakdown after they signed up "as part the summary of benefits ... at the time of enrollment," according to the amendment.
It is this so-called "two-check" provision that has greatly frustrated pro-choice groups. They are nervous that consumers (particularly those who are not women of childbearing age) will find the extra fee burdensome while giving them no benefit, and decide to switch to another plan without abortion coverage. If enough consumers made these switches, insurers could begin to drop their abortion coverage altogether. "It unfairly treats abortion as a separate, stigmatized benefit," says Nancy Keenan, president of NARAL Pro-Choice America. "Requiring these insurance plans to process hundreds of additional transactions, I think that runs the risk of creating a significant disincentive for plans to offer abortion services in their coverage." An analysis of the language by Sara Rosenbaum, a professor in the George Washington University's department of health policy, says that it will "have a significant impact on the ability or willingness of insures to offer … medically indicated abortions."
One Senate aide involved in the negation says they knew that pro-choice groups would not be pleased with the deal being struck. "Health-insurance reform was always meant to be about increasing health choices, not taking them away," says Alex Glass, communications director for Patty Murray, one of the five senators involved in the abortion compromise. "Is this the language we wanted? No, but it stopped Stupak and kept health reform moving forward without rolling back women's health-care options."
Pro-choice lobbying organizations have been much more pointed in their criticism of the language, generally opposing or withholding support from the Senate bill because of it. NARAL has withheld its support from the Senate bill, while Planned Parenthood and the National Organization of Women have all come out in opposition to the Senate bill despite numerous provisions in support of women's health, including Sen. Barbara Mikulski’s amendment to expand preventative care and screenings for women at little to no cost for them. The Senate bill would also eliminate gender rating, an insurance industry practice that generally results in women paying higher premiums.
Pro-choice members of Congress are still trying to decide if the Nelson language is actually that onerous. One concern: it allows states to bar plans traded on their public exchange from covering abortion. But states already have the ability to bar private insurers from covering abortion and five—Idaho, Kentucky, Missouri, North Dakota, and Oklahoma—already do so unless the life of the mother is endangered (Oklahoma allows coverage in this situation, as well as in cases of rape or incest).
The most difficult provision to understand, though, is how the separate payment requirement would play out. If a customer signed up to pay electronically, the difference between one and two transactions would not be particularly noticeable. Americans enrolled in employer-based coverage, for example, will not even notice the segregation of funds as their employer will be responsible for the two separate deposits. But if they physically have to write two checks—and every enrollee, male or female required to do so—it could be much more burdensome. "I'm just trying to picture my son writing out his health insurance payment, and then writing another check for his part of the 'abortion coverage,'" Planned Parenthood president Cecile Richards wrote Monday in a Huffington Post editorial. "Is this really happening?"
Moreover, no matter what the Nelson language says, it is a benefit to pro-choice groups in that it allows the conference committee to wrestle with the issue. If the original Stupak language had passed the Senate as well, the issue would be settled. "The goal now is to reaffirm, in a conference setting, that we're maintaining a status quo and not eroding a woman's choice," says Capps. "I would love to see it reflect the language in the beginning, overturning Stupak, which they did in the Senate."
While taking different stances on the Nelson language, supporters of abortion rights on and off the Hill have a mutual respect for eachother's roles in the reform process. "Frankly, that's their right and obligation," says Capps. "I'm in that camp too. I also have the feeling that we have the tremendous responsibility and opportunity to take major steps forward in terms of health-care delivery." Likewise, Richards takes a different stance on the bill, but does will not fault her allies in the Senate for ultimately voting to send this language to conference. She places the blame on Nelson rather than Murray or Boxer. "Senator Nelson put his colleagues in a very bad place," says Richards. "They were forced to agree to something that to move to the forward."
Even the pro-choice groups, while making plans for lobbying days in early January, admit to being stuck in an incredibly difficult place. They are going into conference opposing both versions of the health-care-reform bill. "Once it became clear Nelson was the 60th vote … that was a bad sign," says Richards. "A very small number of members of Congress have decided to make this their entire focus. One senator can completely derail the process if they so choose."
In this sense, the health-care-reform experience has been a sobering wake-up call for pro-choice activists, particularly those who felt abortion rights were in the clear once President George W. Bush left office. "People felt that we have a pro-choice president, pro-choice congressional leadership, and now all was going to be well in the world," says Keenan. "But when you get down to this kind of close vote, you truly need a pro-choice working majority. The fact that we don't have that has become starkly evident as we've gone through this."