Controversial Stupak Amendment Sows Anger, Confusion On Capitol Hill

November 9, 2009 1:55 p.m.

When Rep. Bart Stupak (D-MI) authored an amendment several months ago to prohibit federal dollars from being used to pay for insurance policies that cover abortion, Democratic leaders and health care principals didn’t take his proposal very seriously. As a result it was never subjected to the sort of rigorous analysis that controversial legislation is often treated to. That was a miscalculation. Liberals were forced this weekend to accept the amendment as the price of passing an otherwise progressive health care bill through the House. And now, everyone on both sides of the abortion issue is scrambling to try to figure out what the amendment’s language actually means and the practical effect it would have if enacted into law.

As one House Democratic health care aide put it, “there are a ton of unanswered questions.”The letter of the amendment itself suggests that women who want to buy an insurance plan that covers abortion must not also be receiving government subsidies, provided for in the bill, to help cover their premiums. However, the overwhelming majority of women in the health insurance exchanges will be receiving subsidies from the government, and if any of them decide they want abortion coverage, under the terms of the Stupak amendment, they’d have to buy a supplemental plan paid for out of pocket.

That could reduce private insurers’ incentive to offer any comprehensive plans that cover abortion–a view articulated by Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress, and adopted by some lawmakers on the Hill. Arons writes, “As the vast majority of Americans in the Exchange will need to use some of these credits [aka subsidies], it is highly unlikely any plan will want to offer abortion coverage.”

But in an interview with TPMDC, Arons suggests it may be even more complicated than that. One of the pillars of reform legislation is a provision called “guaranteed issue,” which holds, basically, that insurers in the exchange must sell consumers whichever insurance policies they choose. However, the Stupak amendment would explicitly forbid people who are provided government subsidies from buying policies that cover abortion–and that contradiction could run afoul of the promise of guaranteed issue from day one.

“It’s a somewhat open question about how those two provisions would interact,” Arons says.

For the two measures to work in tandem, she says, either every plan in the exchange would have to be prevented from offering abortion coverage, or the guaranteed issue provision would have to be modified. “I would think there would have to be some sort of specific exemption to the guaranteed issue provision,” Arons says.

How that would happen, or if it would even be necessary, remains unclear. There is some disagreement with this interpretation on the Hill. And that’s sort of the point. “It hasn’t been thought through,” Arons said.

Ergo, confusion. In the ensuing weeks, as progressives and pro-choice activists work to get the amendment stripped from the final legislation, these arguments will be hashed out further by members, activists, and policy experts. More than 40 liberal lawmakers now say they will vote against any conference report that includes the provision. That’s more than a big enough bloc to kill health care reform altogether. And on the other side of them are 64 Democrats who voted for the Stupak amendment, 40 of whom actually voted for the final bill on Saturday. Nancy Pelosi will have to get those numbers way down if she doesn’t want the whole reform project to collapse in its final stretch. Stay tuned.

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