Senate Likely to Thwart Stupak Amendment

National abortion-rights advocacy groups were outraged when the House passed the Stupak amendment to the health-care bill. The amendment—named for its sponsor, Democratic Rep. Bart Stupak—would bar patients who receive government affordability credits from buying health insurance that covers elective abortions, even if they pay for the abortion component with their own money. It seemed as if the reproductive-rights establishment had been blindsided by Speaker Nancy Pelosi's last-minute deal to placate the conservative Democrats in Congress and the U.S. Conference of Catholic Bishops (USCCB). (Article continued below...)

The reality is much more complicated. Abortion-rights groups were actually watching and lobbying against stringent anti-abortion restrictions in the health-care bill throughout the process. And, while their strategy failed in the House, the introduction of Senate Majority Leader Harry Reid's health-care bill on Wednesday without Stupak-like language indicates that their predictions that they would be more effective in the Senate are being vindicated.

National pro-choice groups had been watching the issue of abortion funding closely since this spring. This summer, they reluctantly supported a compromise deal between pro-choice and pro-life Democrats that they hoped would defuse the issue of abortion and allow reform to proceed.

For national abortion-rights groups, the issue of abortion funding was a sword of Damocles hanging over them throughout the health-care reform process. Leaders of national pro-choice groups say that they were well aware that something like the Stupak amendment could find its way into the House bill. The House Democratic Caucus has a reputation for being more liberal than its Senate counterpart on key health-reform issues like the public option, so a grassroots member of, say, NARAL, might have been taken by surprise. But it's a myth that there's a pro-abortion–rights majority in the House. Among insiders, it was no secret that if Stupak got his up or down vote, the amendment would prevail.

This summer, abortion-rights activists helped broker a compromise to keep the Stupak language out of the bill. Stupak tried and failed to introduce his language in the Energy and Commerce Committee. In an attempt to put forward an alternative more palatable to both pro-choice and pro-life members, Democratic Rep. Lois Capps, a former public-health nurse, introduced the so-called Capps compromise, which passed. At the time, even the USCCB hinted that it might be amenable to a Capps-type deal in which there was no "direct federal funding" of abortion.

The compromise was modeled on the Hyde amendment, a 1976 law that bans federal funding for abortions through the annual Health and Human Services appropriations bill. The Capps amendment would have prohibited direct federal subsidies for abortion coverage, but it would have allowed women receiving government subsidies to buy policies that covered elective abortions, provided the money to pay for that coverage came out of the individual's share of the premium. It is expected that about 80 percent of the initial participants in the new government health exchanges will receive at least some federal subsidy, but most of those people will still pay most of their premiums out-of-pocket.

Pro-choice groups say that the Stupak amendment is a radical departure from the Capps compromise that goes well beyond the scope of the Hyde amendment, because the Stupak language would not allow any insurance plan in the health-care exchange to offer abortion coverage to anyone receiving government subsidies. Since about 80 percent of the people on the exchange are expected to receive some form of subsidy, and half of the remainder are men, only about 10 percent of the people in the exchange would have the option of buying a plan that offered elective abortion coverage. Experts say that it's unlikely that insurance companies would offer a whole separate plan for just 10 percent of customers who might want that coverage. And, unlike the Hyde amendment, which has to be reauthorized every year, Stupak-type language would be a permanent part of the health-care bill. (Article continued below...)

"The Stupak amendment prohibits the public plan—as well as the private plans offered through the exchange, if they accept any subsidized customers—from covering abortion services. This effectively bans abortion coverage in all health-insurance plans in the new system, whether they be public or private," Sen. Kirstin Gillibrand explained in a speech on the Senate floor on Nov. 10.

If the measuring stick is the Hyde amendment, it seems that the pro-choice groups are correct about what constitutes the status quo. Currently, the Hyde amendment allows states to cover abortion with their own Medicaid matching funds as long as federal Medicaid dollars aren't spent on abortions. Anti-abortion-rights groups counter that any federal money in a plan that covers abortion is a federal subsidy of abortion.

It's a semantic question: if federal money subsidizes the premiums, individuals have more money to buy abortion coverage. But the government allows segregating federal funds in other contexts. Planned Parenthood, for example, gets federal funds to provide nonabortion health care, and it also provides abortions paid for with nonfederal money. "We spent a lot of time working on a compromise that we thought was very fair that didn't move the ball," says Laurie Rubiner, vice president of public policy at Planned Parenthood Federation of America, of the Capps amendment. "A lot of people on both sides thought that was a fair compromise."

"There was all this talk about common ground and people coming together," recalls Judy Waxman, vice president of health and reproductive rights at the National Women's Law Center.

In the days leading up to the final House vote, Stupak threatened to work with Republicans to torpedo health reform unless his amendment got an up or down vote. That's when the USCCB launched a lobbying barrage. The message was clear, pro-choice advocates say: either the Stupak amendment got a vote on the floor, or the USCCB would use all its powers to force members of Congress to back a motion to recommit the bill, which means it would have been revised again with harsher anti-abortion language before coming to a vote. "My understanding is that [the USCCB] threatened to bring the whole bill down," said Waxman. "The USCCB threatened to make people vote [on the motion to recommit]."

Asked whether USCCB threatened to bring down health reform over the Stupak language, Sister Mary Ann Walsh of the USCCB replied, "We don't get into the politics. We deal with principles." Walsh's assertion seemed to fly in the face of the evidence that USCCB launched what the New York Times called an "extraordinary" lobbying push in the 10 days leading up to the final vote. When asked whether bishops contacted members to influence their votes, Walsh conceded that "we participate in the legislative process as anyone does." She confirmed that Stupak's office had consulted with the USCCB on the language of the amendment.

Pro-choice groups and their allies in the House say that for most of the week before the vote, they were feeling confident that they could keep Stupak from getting his vote with procedural tactics. However, Pelosi informed the pro-choice groups on the evening of Friday, Nov. 6, that she was going to give Stupak his vote in exchange for their support on final passage. Stupak had threatened to join with Republicans to pass a motion to recommit—which would have inserted even harsher abortion restrictions—if his amendment was not added to the bill. Those restrictions could have been the poison pill that would defeat the bill outright. The amendment passed late Saturday night by a margin of 240–194 with 64 Democrats voting aye. Analyst Nate Silver noted with some surprise that more than a handful of the Democrats who voted yes on Stupak had solid pro-choice voting records. Silver theorized that these heretofore pro-choice Dems voted yes because they felt vulnerable ahead of the midterm elections, or perhaps because they were afraid that a no vote could derail the bill altogether.

But Susan Cohen, director of government affairs for the Guttmacher Institute, a New York think tank tank that advocates for reproductive rights, argues that Stupak picked up pro-choice votes because many legislators didn't understand what they were voting for. Both sides presented their amendment as the one that preserved the Hyde amendment status quo. Cohen thinks the pro-choice side could have done more to counter what she calls "misinformation" from Stupak proponents. Cohen says Guttmacher is trying to educate all senators who support health-care reform about the potential impact of Stupak-type restrictions. The Stupak amendment was never subjected to the kind of rigorous scrutiny that such a controversial proposal would ordinarily receive.

Pro-choice groups insist that they will not be caught off guard when the bill comes to the Senate. The Center for Reproductive Rights unveiled an anti-Stupak-amendment TV spot on Tuesday that will run in Washington, D.C., on cable, and on the Web. The same day, People For the American Way and NARAL delivered a petition with more than 97,000 signatures amassed over 72 hours to the office of Senate Majority Leader Harry Reid, urging him to keep the Stupak language out of the Senate bill. So far, that pressure has worked.

The pro-life contingent would need at least 60 votes to add Stupak-type language to the Senate bill when it comes to the floor. Momentum seems to be shifting in favor of the pro-choice faction. Even Sens. Ben Nelson (D-NE) and Bob Casey (D-PA), two of the staunchest pro-life Democrats in the Senate, backed off off their original insistence that the senate bill include Stupak-like language.

Pro-choice advocates can count one Catholic group in their camp. "Health-care reform could never be considered reform if it were to discriminate against women in this way," said Jon O'Brien, president of Catholics for Choice. "It's not about covering some parts of some people. It's about covering all parts of all people."