and Commerce Committee adopted an amendment to proposed health care reform legislation that raises
hopes of a détente in ongoing tensions over
abortion funding. The amendment, put forth by California Democrat Lois Capps,
clearly states that federal funds cannot be used to pay for so-called “elective”
abortions, ensures that private plans participating in a proposed regional
health care exchange system will neither be prohibited from nor required to pay
for abortion services, prohibits the preemption of state abortion laws (such as
those requiring parental notification and consent), and extends existing
conscience protections to health care providers participating in the exchange. It also
attempts to chart a common ground course by requiring at least one plan in each
regional exchange to include, and one not to include, abortion
The Energy and
Commerce Committee’s decision came as both sides of the abortion debate
voiced support for “abortion neutral” health care reform – that is, in order to
reach consensus on the larger issues, reform ought preserve policies that are
currently in effect regarding federal support for abortion services. While the
Capps Amendment does make
significant progress toward common ground, some important questions still
remain. For instance, does abortion neutrality really serve as an adequate
standard to gauge common ground in the health care debate? Does the Capps
Amendment really constitute abortion neutrality? And how do we define abortion
neutrality in areas where federal precedent does not exist?
Indeed, new showdowns are
brewing over these very concerns, with groups like the Family Research Council
and the Catholic League spearheading a misinformation campaign to cast the
legislation as a thinly veiled attempt to force taxpayers to fund others’
abortions, and ignoring the progress that has been made toward a health care
package that can find broad public support.
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voices have expressed legitimate concerns over some of the amendment’s
provisions. These questions, as Steven Waldman points
out, stem from
the fact that health care reform exposes issues for which there is no federal
precedent. The U.S. has never before created a government-managed health
insurance plan to compete with private options, and thus there are no standards
to uphold regarding abortion coverage in such a plan. Each side in the abortion
debate has a strong case for what, if any, role abortion should play in a public
option. By putting the decision in the hands of the Secretary of Health and
Human Services, the Energy and Commerce Committee has effectively passed the
buck either to federal regulators or the drafters of the final
while still ensuring that federal funds won’t
pay for elective abortions.
Were groups like the Family
Research Council and the Catholic League serious about abortion common ground,
they would champion the Capps Amendment’s positive points instead of issuing
categorical condemnations of its intent. For months, antiabortion extremists
have warned of a government-funded takeover of health care, which would
supposedly mandate abortion coverage as part of an essential benefits package
and force Catholic hospitals to provide services to which they morally object.
The passage of the Capps Amendment indicates that these fears are completely
These radical voices should
also take note of the status of the Hyde Amendment – which stipulates that
federal Medicaid funds cannot be used to pay for elective abortions – under the
proposed legislation. Abortion rights opponents have long argued that Hyde
protections should apply to health care reform, and the Capps Amendment
effectively accomplishes this in two ways. First, it explicitly derives the
health care bill’s definition of abortion services for which federal funding is
not allowed from the definition contained in the Hyde Amendment. Second, it
duplicates Hyde’s limitations on the use of those funds.
The Capps Amendment does not prohibit private
health care plans that cover abortion services from receiving federal subsidies,
something that has proven to be a sticking point for some abortion opponents.
These observers should note that this provision is, in fact, entirely consistent
with current federal policy. State Medicaid programs are presently allowed to
pay for abortions, provided they fund these services using non-federal monies.
And the federal government currently subsidizes private insurance through
programs like COBRA and the Health Coverage Tax Credit, without excluding those
private plans that provide abortion coverage.
As Congress moves into the
August recess, the Capps Amendment may be touted as significant progress toward
common ground in the abortion debate. Unfortunately, it is not the end of the
story. Both supporters and opponents of abortion rights should continue to
engage in constructive dialogue to establish shared parameters for what
constitutes abortion neutrality, and propose ways to achieve abortion-neutral