Reid stripped Stupak language from Senate ObamaCare bill
posted at 12:15 pm on November 19, 2009 by Ed Morrissey
The Senate healthcare reform bill includes new language designed to prevent taxpayer money from financing abortions, an anti-abortion-rights Democrat said Wednesday.
Sen. Ben Nelson (D-Neb.), who was briefed on the healthcare bill by Majority Leader Harry Reid (D-Nev.) in advance of a Wednesday meeting of all Senate Democrats, said he received assurances that his concerns about abortion had been met. …
Nelson emphasized he had seen no legislative language on abortion and specified that the provisions would not be the same approved by the House. Those provisions have triggered an outcry from pro-abortion-rights Democrats in both chambers, who vowed to strip them from any legislation that reaches President Barack Obama. …
Sen. John Kerry (D-Mass.), who supports abortion rights, said Reid’s new provisions would preserve the Hyde amendment while enabling people to buy insurance plans with abortion coverage on the exchange.
“We’re basically going to keep current law, which is what we ought to do,” Kerry said after the Democratic caucus meeting.
The question will be whether the new language will be enough to allow moderates to climb down from their previous pro-Stupak declarations. The restrictions come in Section 1303 of the Reid bill, which dances on the notion of fungibility in federal subsidies:
SEC. 1303. SPECIAL RULES.
(a) SPECIAL RULES RELATING TO COVERAGE OF ABORTION SERVICES.—
(1) VOLUNTARY CHOICE OF COVERAGE OF ABORTION SERVICES.—
(A) IN GENERAL.—Notwithstanding any other provision of this title (or any amendment made by this title), and subject to subparagraphs (C) and (D)—
(i) nothing in this title (or any mendment made by this title), shall be construed to require a qualified health plan to provide coverage of services described in subparagraph (B)(i) or (B)(ii) as part of its essential health benefits for any plan year; and
(ii) the issuer of a qualified health plan shall determine whether or not the plan provides coverage of services described in subparagraph (B)(i) or (B)(ii) as part of such benefits for the plan year.
(B) ABORTION SERVICES.—
(i) ABORTIONS FOR WHICH PUBLIC FUNDING IS PROHIBITED.—The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is not permitted, based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.
(ii) ABORTIONS FOR WHICH PUBLIC FUNDING IS ALLOWED.—The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is permitted, based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.
(C) PROHIBITION ON FEDERAL FUNDS FOR ABORTION SERVICES IN COMMUNITY HEALTH INSURANCE OPTION.—
(i) DETERMINATION BY SECRETARY.—The Secretary may not determine, in accordance with subparagraph (A)(ii), that the community health insurance option established under section 1323 shall provide coverage of services described in subparagraph (B)(i) as part of benefits for the plan year unless the Secretary—
(I) assures compliance with the requirements of paragraph (2);
(II) assures, in accordance with applicable provisions of generally accepted accounting requirements, circulars on funds management of the Office of Management and Budget, and guidance on accounting of the Government Accountability Office, that no Federal funds are used for such coverage; and
(III) notwithstanding section 1323(e)(1)(C) or any other provision of this title, takes all necessary steps to assure that the United States does not bear the insurance risk for a community health insurance option’s coverage of services described in subparagraph (B)(i).
(ii) STATE REQUIREMENT.—If a State requires, in addition to the essential health benefits required under section 1323(b)(3) (A), coverage of services described in subparagraph (B)(i) for enrollees of a community health insurance option offered in such State, the State shall assure that no funds flowing through or from the community health insurance option, and no other Federal funds, pay or defray the cost of providing coverage of services described in subparagraph (B)(i). The United States shall not bear the insurance risk for a State’s required coverage of services described in subparagraph (B)(i).
(iii) EXCEPTIONS.—Nothing in this subparagraph shall apply to coverage of services described in subparagraph (B)(ii) by the community health insurance option. Services described in subparagraph (B)(ii) shall be covered to the same extent as such services are covered under title XIX of the Social Security Act.
Compare that to the text of the Stupak amendment:
SEC. 265. LIMITATION ON ABORTION FUNDING.
(a) IN GENERAL.-No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to Cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers·from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.
(b) OPTION TO PURCHASE’ SEPARATE SUPPLEMENTAL COVERAGE OR PLAN-Nothing in this section shall be construed as prohibiting any nonfederal entity (including an individual or a State or local government) from purchasing separate supplemental coverage for abortions for which funding is prohibited under this’ section, or a plan that includes such abortions, so long as
(1) such coverage or plan is paid for entirely using only funds not authorized or appropriated by this Act; and
(2) such coverage or plan is not purchased using
(A) individual premium payments required for’ a Exchange-participating health benefits plan towards which an affordability credit is applied; or
(B) other nonfederal funds required to receive a federal payment, including State’s or locality’s ,contribution of’ Medicaid matching funds.
(c) OPTION TO OFFER SEPARATE SUPPLEMENTAL COVERAGE OR PLAN.-Notwithstanding section 303(b), nothing in this section shall restrict any nonfederal QHBP offering entity from offering separate supplemental coverage for abortions for which funding is prohibited under this section, or a plan that includes such abortions, so long as (1) premiums for such separate supplemental
coverage or plan are paid for entirely with funds not authorized or appropriated by this Act;
(2) administrative costs and all serv;ices offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage ,or plan; and
(3) any nonfederal QHBP offering entity that offers an Exchange-participating health benefits plan that includes coverage for abortions for which funding is prohibited under this section also offers an Exchange-participating health benefits plan that is identical in every respect except that it does not cover abortions for which funding is prohibited under this section.
The Stupak language is much, much stronger than the weak offering in the Reid bill. For one thing, Reid’s language only prohibits the use of federal funds based on the law as it was in the previous six months before the plan year. Why not just take Stupak’s direct approach and forbid federal funds from going to abortions and abortion coverage? This has the appearance of a loophole deliberately set for Congress in which arguments can be made as to whether the restrictions on funds only apply to monies transmitted from HHS, and which laws apply in setting the precedent for the restriction.
But the replacement of Stupak’s clear and unmistakable ban with the weasel-worded Section 1303 may be enough to sway moderates like Ben Nelson of Nebraska, even if it doesn’t sway Stupak himself. Democrats will insist that the two sections are functionally equivalent — and I suspect the media will be happy to help them with that in order to get political cover for a yes vote in the Senate. It’s a sleight-of-hand that has a decent chance of succeeding as long as people don’t compare the two clauses and see the differences for themselves.