Achieving Abortion Neutrality in Health Care Reform

Supporters of health care reform have been determined not to let the delicate issue of abortion trip up comprehensive legislation. The key to that effort has been to seek the goal of “abortion neutrality,” which means that the legality, cost, and availability of abortion, as well as the federal role in abortion, is no greater or no less than if there were no bill. Our close read of the language offered by pro-life Rep. Brad Ellsworth finds that his proposed amendment moves the bill in a pro-life direction but still achieves the goal of abortion neutrality.

Rep. Ellsworth’s amendment builds off of an earlier good faith attempt offered by pro-choice Rep. Lois Capps that was included in the Energy and Commerce Committee’s draft bill. Below we explain how the Ellsworth Amendment moves the bill in a pro-life direction but still maintains abortion neutrality. Rep. Ellsworth has a 100% score with National Right to Life and Rep. Capps has a 100% NARAL rating. We commend each of them for trying to strike this delicate balance.

1. The Ellsworth Amendment ensures that no federal funds can ever be used to fund abortion in the Exchange.

The Capps Amendment stated that no federal subsidies to individuals in the form of “Affordability Credits” can be used to pay for abortion coverage. The Ellsworth Amendment expands this ban to apply to any and all “other federal funds” that do now or may in the future fund the Exchange. This means that any additional federal dollars, even those beyond “Affordability Credits,” that may be designated to fund the Exchange (i.e. as part of a future stimulus package) will now not be able to fund abortions.

2. The Ellsworth Amendment codifies [or “puts into permanent law”] strict Hyde limitations on the pro-life plan.

Under the Capps Amendment, at least one plan in the Exchange must be available that covers abortion services only in Hyde Amendment exceptions (in cases of rape, incest or life endangerment). And this plan can, in fact, choose not to even cover Hyde abortions. From the pro-life perspective, the shortcoming of the Capps Amendment is that although the Hyde Amendment has been in law for more than 30 years, it is not permanent law—it is renewed each year as part of a Labor, Health and Human Services funding bill. The Ellsworth Amendment ensures that even if the Hyde Amendment lapses or changes, at least one plan in the Exchange will still meet the Hyde Amendment standards by providing abortion only in cases of rape, incest or life endangerment, while still making it clear that this plan need not cover abortions at all. In sum, this provision enshrines the Hyde Amendment protections in federal law for the one required pro-life plan in the Exchange, guaranteeing that pro-life Americans always will be assured of this option.

3. The Ellsworth Amendment gives greater protection to insurance plans that do not cover abortion.

Under the Capps Amendment, abortion coverage is specifically banned from the minimum essential benefits requirements for insurance plans both in and out of the Exchange. The Ellsworth Amendment tightens this provision by ensuring that plans that do not cover abortion are not penalized in any way by the Commissioner, who administers the day-to-day workings of the Exchange. It requires that the Commissioner “not discriminate” against a plan based on whether or not they cover abortion. This broadens protections that pro-life plans have in the Exchange. For example, it would ban discrimination against pro-life plans wanting to get into the Exchange after the first required pro-life plan has filled that “slot.”

4. The Ellsworth Amendment ensures that the federal government has no role in collecting or paying abortion claims if there is a public plan.

The Capps Amendment assumed that, if a public plan were enacted, the federal government could itself be the administrator of the plan and in that case, the federal government would collect the private premiums, segregate funds that can be used to pay for abortion and also pay for the abortion claims out of the segregated funds. The Ellsworth Amendment would remove the federal government from this direct interaction with abortion by requiring the Secretary of Health and Human Services to use a private contractor to collect, segregate, and pay all abortion claims. This idea is modeled on Medicare, which relies on private contractors to carry out much of its administrative work.

5. The Ellsworth Amendment strengthens the guarantee of segregation of funds.

Under the Capps Amendment, the plan would have to “provide assurances satisfactory to the Commissioner” that funds were being segregated for the purpose of ensuring that federal tax dollars were not being used to pay for abortions. The Ellsworth Amendment raises the bar by requiring that segregation of funds comply with three separate standards: Generally Accepted Accounting Principles; Office of Management and Budget circulars on fund management; and guidance on accounting from the Government Accountability Office.

As noted above, we believe the Ellsworth Amendment moves the bill meaningfully in a pro-life direction, but it still maintains abortion neutrality. Other language under consideration, offered by Rep. Bart Stupak, is, in our view, not abortion neutral. Like Reps. Ellsworth and Capps, Rep. Stupak would also like to see health care reform succeed. But his proposed language goes much too far and would entangle the health care debate with the ongoing battle over abortion. We believe that the stakes are too high and that health care reform is not the place to gain ground in the abortion wars.