Is it worth sacrificing health care reform for ideological purity on abortion? That’s the question Democrats are facing after House Speaker Nancy Pelosi, to avoid derailing health care legislation, reluctantly accepted an amendment offered by Michigan Democrat Bart Stupak that prohibits people who receive any federal health care subsidies from buying insurance plans that cover abortion. More than 40 liberal House Democrats have promised to vote against any final bill that includes the provision, but that risks alienating the 40 House Democrats who voted for both the amendment and the House’s health care bill, as well as some Senate moderates. President Obama has vowed to maintain the status quo on abortion and hinted that it’s possible to imagine a more moderate abortion compromise. But, if the compromise doesn’t materialize, pragmatic pro-choice Democrats are likely to make the same calculation as Pelosi: The Stupak amendment is objectionable in principle, but it’s not worth scuttling health care reform in practice. This is a wrenching political choice that will have negative consequences, but there may not be any escape.
How many women would the Stupak amendment affect? It wouldn’t immediately impinge on the roughly 60 million women ages 18-64 who presently get health insurance through their jobs or their spouses’ jobs rather than Medicare. At least in the short term, nothing would change for these women because they wouldn’t receive any federal funds. But most of them aren’t reimbursed for abortion coverage under the current system. There’s a debate about how many private health care plans cover abortion--estimates have ranged from 46 percent to nearly 87 percent. But, regardless of the number, the Guttmacher Institute found that only 13 percent of all abortions in 2001 were directly billed to private insurance companies. Some women may have filed for reimbursement on their own; others may have been reluctant to file claims because they didn’t want their employers or spouses to know they had abortions; and other women were uninsured. Nevertheless, 74 percent of women who had abortions paid for them out of pocket.
That doesn’t mean the Stupak amendment would maintain the status quo on abortion funding. It would restrict the choices of women who buy private health insurance on the new health-insurance exchange designed to provide affordable coverage. The Congressional Budget Office estimates that, under the House bill, 21 million Americans will buy insurance through the exchange by 2019. This group will include some of the 17 million women, ages 18-64, who are currently uninsured (and, obviously, don’t receive any abortion coverage) and some of the 5.7 million women currently purchasing coverage through the market rather than through employers--including self-employed and unemployed women, and those whose jobs don’t offer benefits.
It’s some subset of this last group--the women who switch from private plans that now cover abortion to private plans on the federal exchange--who would be most affected by the changes. The overwhelming majority of people who buy private insurance on the exchange will be receiving federal affordability credits, and the Stupak amendment says that, if you receive a federal subsidy, you can’t buy insurance that covers abortion. (The amendment allows women who are farsighted enough to plan for unplanned pregnancies to buy a single-service abortion-insurance “rider,” but, in practice, past experience suggests these riders won’t be readily available.) “The bottom line seems to be that abortion coverage, if it exists at all on the exchange, will be rare,” says Adam Sonfield of the Guttmacher Institute. This may not be a great financial burden for the majority of women who have first-trimester abortions, which are relatively cheap--in 2006, the average cost of a first-trimester abortion was $413--but it could represent a more serious burden for women who have later-term abortions, which are more expensive.
Of course, if the exchange succeeds in providing affordable coverage, as Democrats hope it will, more women may switch from their current self-insured plans to exchange plans. The more health care reform succeeds, in other words, the more reproductive access will suffer. And efforts to control costs will suffer too, since childbirth is far more expensive than abortion.
Is there a way out of this trap? There’s no question that the compromise originally championed by some House Democrats was far preferable as a matter of principle and policy. It would have required private insurance companies on the exchange--as well as the new public option--to create segregated funds to ensure that only private, rather than federal, dollars subsidize abortion coverage. The model is the 1976 Hyde amendment, which prohibits the use of federal funds to reimburse the cost of most abortions under Medicaid but allows the states to subsidize abortions for Medicaid recipients on their own. (Seventeen states use public money to fund abortions for some poor women.) Pro-life groups have resisted the segregation of public and private funds, arguing that the two are ultimately fungible. (They are less concerned about fungibility when it comes to federal grants for soup kitchens run by churches, which can then free up funds to celebrate Mass.) At this point, perhaps the most promising compromise for moderate Democrats would be to drop abortion coverage in the public plan but allow women on the exchange, including those receiving federal subsidies, to purchase private plans that include abortion coverage. But that compromise may be resisted by both pro-choice and pro-life purists and, thus, may not be politically feasible.
Let’s imagine that it’s impossible to pass a health care bill without a version of the Stupak amendment. Might the Supreme Court strike the amendment down? In upholding the Hyde amendment in 1980, the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.” By contrast, the Stupak amendment doesn’t leave self-employed women who receive federal subsidies with the same range of choice: It makes it much harder for them to find alternative coverage for abortion and therefore, in practice, leaves the federal government less neutral toward abortion than even the Hyde amendment. For this reason, it’s possible that some liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution. But this argument is unlikely to convince a majority of the Roberts Court, which means that pro-choice Democrats shouldn’t count on the Court to bail them out.
In short, abortion is one area where the common ground Obama seeks may not exist. In that case, the president may conclude, like Nancy Pelosi, that it’s not worth sacrificing health care reform over an important but ultimately peripheral battle in the culture wars. If giving millions of uninsured women access to life-saving procedures like dialysis and chemotherapy requires making it harder for a much smaller number of self-insured women to get abortion coverage, the pragmatic calculation is understandable. But that doesn’t make it any less frustrating.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.