The Senate parliamentarian has warned Republicans that a provision in their healthcare reform bill related to abortion is unlikely to be allowed, raising a serious threat to the legislation.
The parliamentarian, Elizabeth MacDonough, has flagged language that would bar people from using new refundable tax credits for private insurance plans that cover abortion, according to Senate sources.
If Republicans are forced to strip the so-called Hyde Amendment language from the legislation, which essentially bars federal funds from being used to pay for abortions except to save the life of a mother or in cases of rape and incest, it may doom the bill.
MacDonough declined to comment for this article.
Unless a workaround can be found, conservative senators and groups that advocate against abortion rights are likely to oppose the legislation.
Republicans control 52 seats in the Senate; they can afford only two defections and still pass the bill, assuming Democrats are united against it. Vice President Pence would break a 50-50 tie.
Normally, controversial legislation requires 60 votes to pass the Senate, but Republicans hope to pass the ObamaCare repeal-and-replace bill with a simple majority vote under a special budgetary process known as reconciliation.
The catch is that the legislation must pass a six-part test known as the Byrd Rule, and it’s up to the parliamentarian to advise whether legislative provisions meet its requirements.
The toughest requirement states that a provision cannot produce changes in government outlays or revenues that are merely incidental to the nonbudgetary components of the provision.
In other words, a provision passed under reconciliation cannot be primarily oriented toward making policy change instead of affecting the budget. Arguably, attaching Hyde language to the refundable tax credits is designed more to shape abortion policy than affect how much money is spent to subsidize healthcare coverage.
The abortion language that conservatives want in the healthcare bill may run afoul of a precedent set in 1995, when then-Senate Parliamentarian Robert Dove ruled that an abortion provision affecting a state block grant program failed to meet reconciliation requirements, according to a source briefed on internal Senate discussions.
One GOP source identified the parliamentarian’s objection to the Hyde language along with Republican infighting over how to cap ObamaCare’s Medicaid expansion as two of the biggest obstacles to passing a bill.
A Republican senator confirmed that negotiators have wrestled with the procedural obstacle facing the anti-abortion language.
“That has come up, and there well could be a challenge,” the lawmaker said.
The lawmaker, however, said that the problem is surmountable, arguing, “There are ways around it.”
One possibility would be to change the form of assistance to low-income people by changing it from a refundable tax credit to a subsidy filtered through an already-existing government program that restricts abortion services, such as the Federal Employee Health Benefits program or Medicaid.
A second Republican senator said discussions on the topic are ongoing.
GOP negotiators picked up the pace of their discussions with the parliamentarian after the Congressional Budget Office released an updated score for the House-passed healthcare bill in late May.
President Trump is pushing the Senate to pass its version of the legislation by July 4.
If GOP leaders are forced to strip the Hyde language from the healthcare bill and cannot find an alternative way to seal off insurance tax credits or subsidies from being used for abortion services, they would lose the support of anti-abortion rights groups, a devastating blow.
“We’ve made it clear in a lot of conversations and some letters that any GOP replacement plan has to be consistent with the principles of the Hyde Amendment,” said David Christensen, vice president of government affairs at Family Research Council, a conservative group that promotes Christian values.
“Abortion is not healthcare and the government should not be subsidizing elective abortion,” he added.
Christensen predicted that activists would be up in arms if abortion services aren’t barred under the bill.
“If the Byrd Rule were to be an obstacle to ensuring the GOP replacement plan in the Senate does not subsidize abortion, that’s something that would be a serious problem for us and the pro-life community,” he said.
Republican senators who are thought to be safe votes to support the GOP leadership’s ObamaCare repeal-and-replace plan may suddenly shift to undecided or opposed.
“Would that be a deal killer? I’d have to think about it. I’m inclined to think it would [be],” said Sen. James InhofeJames (Jim) Mountain InhofeOvernight Defense & National Security — Senate looks to break defense bill stalemate Senate GOP moving toward deal to break defense bill stalemate Overnight Defense & National Security — US, Iran return to negotiating table MORE (R-Okla.).
Senate Finance Committee Chairman Orrin HatchOrrin Grant HatchLobbying world Congress, stop holding 'Dreamers' hostage Drug prices are declining amid inflation fears MORE (R-Utah), who has jurisdiction over the tax credits in the healthcare bill, acknowledged it could be tough to pass the bill without the anti-abortion language.
“I think a lot of people do think that’s essential,” he said.