Healthcare reform was not supposed to be about abortion. It was supposed to be about saving the lives of the 45,000 Americans who die each year because they are uninsured, and about making healthcare more affordable for all of us. Indeed, this is what it is still about.
But abortion is an issue that simply refuses to be ignored in American politics. Both the House and Senate bills ended up adopting amendments offered by abortion opponents. The House adopted the amendment proposed by Rep. Bart Stupak (D-Mich.), the Senate an amendment proposed by Sen. Ben Nelson (D-Neb.).
I have taught and written about healthcare law and policy for 30 years and am an author of the most widely used health law teaching book. I believe strongly in the sacredness of life and am also a firm supporter of healthcare reform. I am intimately familiar with the abortion provisions of the House and Senate bills, and believe there are no significant differences between them.
Because the Republicans are refusing to allow the Senate to pass a comprehensive reform bill, the only way reform can now be adopted is through the House adopting the Senate bill and both houses passing a reconciliation bill. Reconciliation cannot address abortion, as it does not affect federal revenues or expenditures. So the question is, What does the Senate bill do with abortion?
The Senate bill, like the House bill, prohibits the use of federal premium subsidies to pay for abortions that are not covered by Medicaid (that is, cases of rape and incest or of physical threat to the life of the mother); provides that the government cannot require health plans to cover abortion; prohibits health plans and federal agencies or state and local governments receiving federal funds from discriminating against providers because of their unwillingness to provide for, pay for, provide coverage for or refer for abortion; and leaves in place all state laws regulating abortion and federal law regarding conscience protection or willingness to provide abortion. Neither bill affects abortion coverage through employment-based plans.
The Senate bill creates a new Community Health Center Fund of $7 billion. Last year community health centers provided prenatal, perinatal, and post-natal/post-partum care to 1 of every 8 children born in the United States. It has been argued that this fund is not subject to the Hyde Amendment, which prohibits federal spending on abortion. But this money must be spent through the Department of Health and Human Services, and under federal law, all HHS expenditures are subject to the Hyde Amendment.
There are only four perceptible differences between the Senate and House bills’ treatment of abortion. First, the House bill requires that an individual receiving a federal health insurance subsidy must purchase abortion coverage under a separate supplemental policy using non-federal funds. The Senate bill also prohibits the use of federal funds to purchase abortion coverage; plans that cover abortions must collect a separate privately-paid premium for abortion coverage that will be kept in a strictly regulated separate account. It is argued that plans might find a way nonetheless to subsidize abortion coverage from federal funds, but if they want to do this they could also do it under the House bill as well. No one will have to purchase abortion coverage under the Senate bill who does not want it, just as under the House bill, and no federal funds will pay for abortions.
Second, the Senate bill permits the states to absolutely prohibit the sale of abortion coverage through the new health insurance exchanges, whether or not plans are purchased with federal money. The House bill does not explicitly allow the states to do this. Third, the Senate bill, but not the House bill, prohibits plans from advertising the separate cost of their abortion coverage, and thus from competing with each other by making abortion coverage attractive. Fourth, the Senate bill, but not the House bill, provides for $25 million a year in grants to the states for assisting pregnant and parenting teens and women. These grants offer women who decide not to get an abortion the support they need to get an education and to function.
The Senate bill would cover 30 million uninsured Americans, thousands of whom will otherwise die prematurely every year from lack of health insurance. Health reform deserves the support of all who believe in the sacredness of human life.
Jost is the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law and co-author of Health Law, a casebook used in the teaching of health law at schools nationwide.