Ordinarily, a House-Senate conference committee would iron out the differences, and the resulting compromise would hopefully be confirmed by an additional vote each chamber. However, since the Senate passed its bill, a special election in Massachusetts has — ironically, since the Lion of the Senate was a prime mover in health reform — turned the Senate seat formerly held by the late Democrat Edward Kennedy over to Republican Scott Brown. Any bill reported out of a hypothetical House-Senate conference committee would be unlikely to garner the 60 votes it needs in the Senate to break a GOP filibuster and go to the president for his signature.
According to the Democrats' strategy, the problem of needing 60 votes to overcome a GOP filibuster in the Senate can be gotten around by resorting to a procedure called "reconciliation." Intended to be used only for measures such as tax hikes that affect the federal budget, reconciliation bypasses filibusters by needing only a simple majority of 51 senators to pass a bill. So, if the House sets aside its own bill and passes the Senate bill, then (since that bill has already passed the Senate) the House and Senate could in theory pass just the changes proposed by the president. Each chamber would require yea votes by a simple majority of its members to do so. In the Senate, a simple majority of 51 votes would do. Those changes, accordingly, would constitute a separate reconciliation measure or "fixer" bill to be voted on in both the House and the Senate and would appear on the president's desk alongside the Senate bill as passed by the House in place of its own bill.
Ordinarily, the matters taken up by the Senate in any reconciliation measure would have to be restricted to budgetary matters, in order for reconciliation rules to apply.
Hence, reconciliation can be used at all only if one of two things happens. One is that Alan Frumin, the Senate parliamentarian — part of whose duty it is to filter out non-budgetary matters in reconciliation bills — lets all of the changes included in the "fixer" bill come to the Senate floor under the aegis of reconciliation. Or, two, if the parliamentarian balks at that, Vice President Joe Biden has the authority as president of the Senate to overrule Frumin and let the "fixer" bill come up for a vote.
The hitch is this: The Senate bill which the House must now pass according to this strategy contains language concerning the federal funding of abortions that varies from the House version as currently passed. Were the matter to be handled in the usual way, a House-Senate conference committee would need to choose between the more strongly anti-abortion Stupak-Pitts Amendment of the House bill and the weaker language introduced by Senate Majority Leader Harry Reid into the Senate bill.
The reconciliation measure would leave the Senate language unchanged. Stupak-Pitts, in short, would vanish under reconciliation.
Stupak-Pitts, introduced into the House bill by Democratic Rep. Bart Stupak of Michigan and Republican Rep. Joseph R. Pitts of Pennsylvania, prohibits use of federal funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion." Exceptions would be made for cases of rape, incest, or danger to the life of the mother. All other abortions would be ineligible, under the Stupak-Pitts language, for:
- direct federal funding (e.g., through Medicaid)
- indirect federal funding in any "public option" that the legislation creates
- subsidies or tax credits for the purpose of paying for any private plans that are sold on state "exchanges" where the uninsured who are not eligible for Medicaid and whose employers don't insure them would be required to buy health insurance
Federal funding for (non-excepted) abortions has been illegal since the Hyde Amendment to a 1976 Senate appropriations bill for the U.S. Department of Health and Human Services. This amendment came just three years after the landmark Roe v. Wade decision of the U.S. Supreme Court struck down state laws prohibiting abortion.
The bill already passed by the Senate, as shepherded through by Senate Majority Leader Reid, would:
- Require that there be a plan that covers abortion in every insurance market
- Allow the U.S. Secretary of Health and Human Services to require coverage of any and all abortions throughout any public option program (if there is one)
- Create new subsidies (funded via income tax credits) that will allow the uninsured to purchase, on state exchanges, private health plans that cover abortion
The Senate bill also includes language originally designed to gain the support of Senator Ben Nelson of Nebraska, a Democrat who opposes federal abortion funding. This additional language insisted that private health plans purchased on insurance exchanges must have their customers sign up separately for abortion coverage, if they desire it, provided the insurance company opts to make it available. Then the customers would have to pay the premiums for that coverage separately, by means of writing a separate check (or by separate automatic debit transactions from their bank accounts).
Abortion policies would thus have to be made available separately on the state exchanges by the insurance companies ... if they offer abortion coverage at all. Abortion coverage would amount to a second health insurance policy that provides that one single service. Customers would buy this additional coverage, if they desire it, separately from the comprehensive health insurance packages which they also buy from the same insurance companies on a state exchange.
That provision in the Senate-passed bill would obliterate Stupak-Pitts, if the House passes the Senate bill as is. It is a provision that is loathed both by pro-choice advocates such as Planned Parenthood (it "only serves to stigmatize a woman’s right to comprehensive insurance coverage that includes abortion") and by pro-life organizations such as the U.S. Conference of Catholic Bishops (“federal funds will help subsidize, and in some cases a federal agency will facilitate and promote, health plans that cover elective abortions").
The bishops' "will help subsidize" phrase alone is enough to show why the Reid-Nelson language should be scuttled and Stupak-Pitts (somehow) reinstated. Look at it this way: the federal government proposes, via a tax break, to allow subsidy dollars to remain in the right-hand pocket of needy folks so that they can buy health insurance on a state exchange. Then the feds will say, "You can buy an abortion policy, too, if you want, but you have to pay for that with dollars from your left-hand pocket."
Is there any reason why folks can't move the dollars that remain in their right-hand pocket (because they didn't have to hand them over to Uncle Sam in the form of taxes) over to their left-hand pocket and then shell out for their abortion policy from that fattened left-hand trove? Of course not.
The path to health-insurance reform through Senate reconciliation leaves Reid-Nelson in place and scuttles Stupak-Pitts instead. That needs to change before Catholics and others who favor health-insurance reform but oppose federal abortion funding can in good conscience sign on.
Though it is not a purely budgetary provision, it is not impossible that Stupak-Pitts could be inserted in the reconciliation measure/"fixer" bill, even though it technically doesn't belong there. That might need to happen if Rep. Stupak and like-minded anti-abortion Democrats are to remain in the "Yes" column when the Senate bill and its associated reconciliation measure come up for a House vote. According to "Pro-Life Democrats Confirm: We Will Kill Health Care Bill Over Abortion Funding," an article that appeared on March 4, 2010, Stupak and at least ten other anti-abortion House Democrats are indeed likely to vote no to the Senate bill. The ten other Democrats are:
- Jerry Costello (IL)
- Kathy Dahlkemper (PA)
- Joe Donnelly (IN)
- Steve Dreihaus (OH)
- Brad Ellsworth (IN)
- Marcy Kaptur (OH)
- Dale Kildee (MI)
- Dan Lipinski (IL)
- Jim Oberstar (MN)
- Charlie Wilson (OH)
Add to those names Stupak himself and the only GOP member to vote for the original House bill, Anh "Joseph" Cao of Louisiana, who is now considered unlikely to vote yea on the Senate bill, and the 220-215 margin by which the House passed its original bill looks like it's in danger. (Keep in mind that since the House vote, four of the Democrats in the yea column have left the House of Representatives for one reason or another.)
It gets even more confusing in the Senate: under Senate rules, Republicans would have an opportunity to offer endless amendments to the reconciliation measure, which they might do just to keep the bill from ever coming to an up-or-down vote. If Stupak-Pitts is not in the reconciliation measure passed by the House (assuming the House does manage to pass such a measure) it or something like it could be offered as an amendment in the Senate ... but then the Senate parliamentarian would have to agree to let it into the reconciliation measure (or be overruled by Vice President Biden, who does not, unfortunately, have a record of opposing federal abortion funding).
Additionally, in "Democratic leaders working to win over abortion opponents for health-care reform," an article in The Washington Post of March 5, 2010, Rep. Stupak is described as disagreeing with those House leaders who insist that "rules allow only budget-related issues" to be in the Senate reconciliation measure, and that's why Stupak-Pitts must be left out. "Stupak notes that abortion changes could be added if 60 senators agreed," the article says. That is the first I have heard that a Senate supermajority of 60 has the power to bend the reconciliation rules, but if it is true, it offers yet another way to get Stupak-Pitts back into the legislation.
Then, if Stupak-Pitts (or any other amendment to the House-passed health reconciliation measure) were to pass the Senate, would it need to go through a House-Senate conference committee before the president can sign it? I'm not sure anyone has looked that far ahead yet. Stay tuned ...
