The Ellsworth Amendment: Dems Set to Compromise on Abortion Care in Health Reform, Again

Jodi Jacobson

A vote originally set for tomorrow on the House health care bill may be delayed until next week, even after months of drama to arrive at this point. And to get to yes, Democrats are set to make another compromise on abortion care.

A correction was made to this article at 3:28 pm on Saturday, November 7th.  The article originally stated the Congresswoman Lois Capps was working with Congressman Ellsworth to find compromise language on federal funding and abortion issues.  This was not correct; Congressman Ellsworth worked with the House Majority Leadership on that language.

A vote originally set for tomorrow on the House health care bill (HR 3200) may be delayed until next week, even after months of drama to arrive at this point.  And to get to yes, Democrats are set to make another compromise on abortion care.

If there is one thing this process has revealed it is that there is no real way to find common ground on women’s sexual and reproductive health and rights with today’s Republican party, or with the majority of the so-called Democrats for Life, who for all intents and purposes under the leadership of Michigan Congressman Bart Stupak are currently acting as the legislative arm of the United States Conference of Catholic Bishops. These folks don’t even support access to contraception for the purpose of reducing unintended pregnancies, never mind abortion even to save the life of the mother, so "compromise" on an issue of such profound implications for women is an idealized concept to say the least.

And in fact passage of the current bill remains in question in part because of demands by Stupak and anti-choice forces for language that would completely eliminate coverage of abortion care even in private insurance plans

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As noted here before, a Guttmacher Institute study has found that 87 percent of typical employer-based insurance policies cover abortion care. So under Stupak’s proposed amendment to the bill, women would actually lose coverage under health reform.  It seems Minority Leader John Boehner had it partly right when he talked about health reform as a threat to freedom, but he was confused because it is the anti-choice amendments to this bill that threaten the freedom of women to choose private insurance plans that meet their needs.

These problems were supposed to be avoided by the first compromise, known as the Capps Amendment (see "The Truth About the Capps Amendment") which was included in the House Energy and Commerce bill this summer and has been incorporated into the final House bill.  Authored by Congresswoman Lois Capps (D-CA), a strong pro-choice and women’s rights advocate, the amendment was intended to create an "abortion neutral" platform and pass a good health reform bill as expeditiously as possible.

In other words, with this amendment, abortion was supposed to be off the table as a lightening rod for efforts to upend the reform process.  The pro-choice side (read: the women of the United
States) would not gain any additional provisions expanding coverage for
abortion care under health reform.  And the anti-choice side (read:
largely male, largely ultra-conservative, largely Catholic) would not have to
suffer either expansion of abortion coverage or any loosening of
current restrictions on federal funding of abortion embodied in the
Hyde Amendment.

The key elements of the Capps Amendment are that it:

  • Clarifies that the government could not mandate
    nor prohibit coverage for abortion services for plans in the insurance exchange.

  • Ensures that patients will have access to at least one plan that does cover
    abortions services and one that does not, thereby providing more choices to those who are pro-life since as per above most
    private health insurance plans cover abortion services regardless of whether or
    not enrollee wants it.

  • Also expands the “Conscience Clauses” (i.e., permission for providers to refuse to provide abortions),
    including the one known as the Weldon Amendment), which is in fact expanded under Capps.

  • Clarifies that public funding may not be used to pay for abortion
    services.  Under Capps, private funds (generated by patient premiums) can still be used to
    pay for these services.  These private funds must be kept strictly
    segregated from any federal funds.

  • Does not interfere with the Hyde Amendment (which
    says no Federal funds can be used to pay for abortions except in the case of
    rape, incest, or life of the woman).


The Capps amendment also does not interfere with or preempt any state laws
regarding abortion (i.e. laws regarding parental notification, waiting periods, and so on.)

To call this a compromise or "abortion neutral" is generous, since even given the best intentions of Congresswoman Capps and her desire to move the process forward, the amendment bends over backwards to appease anti-choice groups by expanding conscience clauses that are already more than sufficient and that many consider unethical on their face, and by taking off the table any discussion of expanded abortion coverage for poor women specifically.

But this is about politics, and the Democrats need to pass health reform, so I digress.

The problem?  It turns out not everyone is down with the Capps amendment nor the abortion neutral position, however, least of which are the Catholic Bishops and the conservative Republi-crats hiding out in the Democratic party.  Stupak, for example, is not satisifed with segregating federal funding from private premiums for abortion within insurance plans.  So he and others in his caucus have promised to withold votes unless they get their way and unless they are assured a vote on his amendment during debate on the bill.

Pro-choice groups are of course rallying hard to defeat Stupak’s proposal (see Planned Parenthood’s action page here), and off-the-record conversations with several Hill staffers indicated that his amendment is a "deal-breaker" for many members in any case. 

But the stakes are very high, things can change quickly, the infighting leaves the leadership short on ayes in the 11th hour, the pressure is on the Obama Administration to deliver and there already is talk of the vote being delayed.  Given these realities, the underside of that bus so familiar to women when politics collides with reproductive rights appears to be lurking ominously around the corner.  Still, House leaders are furiously counting votes, and are also working on yet another compromise on abortion in an effort to secure enough votes to pass the bill.

The new compromise language under consideration is an amendment by Congressman Brad Ellsworth, a pro-life Democrat from Illinois with a zero rating on votes from Planned Parenthood.  As of this writing the final language was still a work in progress, and negotiations were underway between Congressman Ellsworth’s office and House Leadership.  However, a memo from the Congressional Research Service and analyses by both Hill staffers and advocacy groups suggests that if passed as currently written in draft, the Ellsworth proposal would essentially do the following:

  • Ensure no federal funds can ever be used in the Health Insurance Exchange proposed in the House bill: The Capps Amendment states that no federal subsidies to individuals in the form of Affordability Credits can be used to pay for abortion coverage. According to a memo drafted by Third Way, "the Ellsworth Amendment expands this ban to apply to any and all ‘other federal funds’ that do now or may in the future fund the Exchange. This means that any additional federal dollars, even those beyond “Affordability Credits,” that may be designated to fund the exchange (i.e. as part of a future stimulus package) will now not be able to fund abortions."

  • Make the Hyde Amendment permanent in the "pro-life" plans in the Exchange:  Under the Capps Amendment, at least one plan in the Exchange must be available that covers abortion services only in Hyde Amendment exceptions (in cases of rape, incest or life endangerment). Managers of this plan can, in fact, choose not to even cover Hyde-approved abortions.  The Ellsworth Amendment ensures that even if the Hyde Amendment is not renewed or is changed, at least one plan in the Exchange will still meet the Hyde Amendment standards by providing abortion only in cases of rape, incest or life endangerment, while still making it clear that this plan need not cover abortions at all.

  • Ensure there is no discrimination against health insurance plans that do not provide abortion.  The Capps Amendment specifically bans abortion coverage from inclusion in the minimum essential benefits package for insurance plans whether in or out of the Exchange. Ellsworth tightens this provision by ensuring that plans that do not cover abortion are not penalized in any way by the the commissioner who administers the day-to-day workings of the Exchange. It also bans discrimination against pro-life plans wanting to get into the exchange after the first required pro-life plan has filled that “slot."

  • Require the Secretary of Health and Human Services to hire a private contractor for handling funds that can be allocated out of private premiums for insurance coverage of abortion and strengthens the means through which those funds remain segregated.

Reaction to the Ellsworth Amendment has been mixed.  Laurie Rubiner, Vice President for Public Policy for Planned Parenthood stated that:

Planned Parenthood is concerned about Representative Brad Ellsworth’s proposed legislative language on abortion care in health care reform. Representative Ellsworth has a zero percent rating from the Planned Parenthood Action Fund and has never been a supporter of women’s health and rights.   

Representative Ellsworth’s language purportedly seeks to amend a carefully-crafted and balanced compromise that should have put this issue to rest months ago. The Capps compromise assures that access to abortion care is neither mandated nor prohibited and that women will not lose the health care benefits they have had for decades.  It also stipulates that no federal funds can be used for abortion care. We are concerned that this new language could tip the balance away from women’s access to reproductive health care.

Others agree that the Amendment "tips the balance" though some claim only slightly so.  Third Way’s analysis of Ellsworth’s Amendment states:

Supporters of health care reform have been determined not to let the delicate issue of abortion trip up comprehensive legislation. The key to that effort has been to seek the goal of “abortion neutrality,” which means that the legality, cost, and availability of abortion, as well as the federal role in abortion, is no greater or no less than if there were no bill. Our close read of the language offered by pro-life Rep. Brad Ellsworth finds that his proposed amendment moves the bill in a pro-life direction but still achieves the goal of abortion neutrality.

Others have said that this proposal provides a way to "bold and underscore" the segregation and non-use of federal funds for abortion care, while allowing individuals to exercise their rights to this legal procedure under private plans with their money paying the premiums.

The stricter segregation of funds, the creation and protection of plans that do not provide abortion, and the other legal assurances created by the Ellsworth Amendment still don’t mollify the far-out right.  National Right to Life committee has called it a "political fig leaf made of cellophane" and the conservative OneNewsNow calls it a "sham."  As noted above, Stupak and the Bishops remain unimpressed.

It’s up to women’s rights groups and women throughout this country to take action now, because the anti-choice movement is in the halls of Congress, literally.  And one thing is clear: The only way to mollify this contingent is to strip half the US population of its fundamental rights.  Any more "compromise" and that’s where we will be.


Analysis Politics

Timeline: Donald Trump’s Shifting Position on Abortion Rights

Ally Boguhn

Trump’s murky position on abortion has caused an uproar this election season as conservatives grapple with a Republican nominee whose stance on the issue has varied over time. Join Rewire for a look back at the business mogul's changing views on abortion.

For much of the 2016 election cycle, Donald Trump’s seemingly ever-changing position on reproductive health care and abortion rights has continued to draw scrutiny.

Trump was “totally pro-choice” in 1999, but “pro-life” by 2011. He wanted to shut down the government to defund Planned Parenthood in August 2015, but claimed “you can’t go around and say that” about such measures two months later. He thinks Planned Parenthood does “very good work” but wants to see it lose all of its funding as long as it offers abortion care. And, perhaps most notoriously, in late March of this year Trump took multiple stances over the course of just a few hours on whether those who have abortions should be punished if it became illegal.

With the hesitancy of anti-choice groups to fully embrace Trump—and with pro-choice organizations like Planned Parenthood, NARAL, and EMILY’s List all backing his opponent, Democratic nominee Hillary Clinton—it is likely his stance on abortion will remain a key election issue moving into November.

Join Rewire for a look back at the business mogul’s changing views on abortion.

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Culture & Conversation Media

Filmmaker Tracy Droz Tragos Centers Abortion Stories in New Documentary

Renee Bracey Sherman

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

A new film by producer and director Tracy Droz Tragos, Abortion: Stories Women Tell, profiles several Missouri residents who are forced to drive across the Mississippi River into Illinois for abortion care.

The 93-minute film features interviews with over 20 women who have had or are having abortions, most of whom are Missouri residents traveling to the Hope Clinic in Granite City, Illinois, which is located about 15 minutes from downtown St. Louis.

Like Mississippi, North Dakota, South Dakota, and Wyoming, Missouri has only one abortion clinic in the entire state.

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The women share their experiences, painting a more nuanced picture that shows why one in three women of reproductive age often seek abortion care in the United States.

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent U.S. Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric. But while I commend recent efforts by filmmakers like Droz Tragos and others to center abortion stories in their projects, these creators still have far to go when it comes to presenting a truly diverse cadre of storytellers if they really want to shift the conversation around abortion and break down reproductive stigma.

In the wake of Texas’ omnibus anti-abortion law, which was at the heart of the Whole Woman’s Health v. Hellerstedt Supreme Court case, Droz Tragos, a Missouri native, said in a press statement she felt compelled to document how her home state has been eroding access to reproductive health care. In total, Droz Tragos interviewed 81 people with a spectrum of experiences to show viewers a fuller picture of the barriersincluding legislation and stigmathat affect people seeking abortion care.

Similar to HBO documentaries about abortion that have come before it—including 12th & Delaware and Abortion: Desperate ChoicesAbortion: Stories Women Tell involves short interviews with women who are having and have had abortions, conversations with the staff of the Hope Clinic about why they do the work they do, interviews with local anti-choice organizers, and footage of anti-choice protesters shouting at patients, along with beautiful shots of the Midwest landscape and the Mississippi River as patients make road trips to appointments. There are scenes of clinic escorts holding their ground as anti-choice protesters yell Bible passages and obscenities at them. One older clinic escort carries a copy of Living in the Crosshairs as a protester follows her to her car, shouting. The escort later shares her abortion story.

One of the main storytellers, Amie, is a white 30-year-old divorced mother of two living in Boonville, Missouri. She travels over 100 miles each way to the Hope Clinic, and the film chronicles her experience in getting an abortion and follow-up care. Almost two-thirds of people seeking abortions, like Amie, are already a parent. Amie says that the economic challenges of raising her other children make continuing the pregnancy nearly impossible. She describes being physically unable to carry a baby and work her 70 to 90 hours a week. Like many of the storytellers in the film, Amie talks about the internalized stigma she’s feeling, the lack of support she has from loved ones, and the fear of family members finding out. She’s resilient and determined; a powerful voice.

The film also follows Kathy, an anti-choice activist from Bloomfield, Missouri, who says she was “almost aborted,” and that she found her calling in the anti-choice movement when she noticed “Anne” in the middle of the name “Planned Parenthood.” Anne is Kathy’s middle name.

“OK Lord, are you telling me that I need to get in the middle of this?” she recalls thinking.

The filmmakers interview the staff of the Hope Clinic, including Dr. Erin King, a pregnant abortion provider who moved from Chicago to Granite City to provide care and who deals with the all-too-common protesting of her home and workplace. They speak to Barb, a talkative nurse who had an abortion 40 years earlier because her nursing school wouldn’t have let her finish her degree while she was pregnant. And Chi Chi, a security guard at the Hope Clinic who is shown talking back to the protesters judging patients as they walk into the clinic, also shares her abortion story later in the film. These stories remind us that people who have abortions are on the frontlines of this work, fighting to defend access to care.

To address the full spectrum of pregnancy experiences, the film also features the stories of a few who, for various reasons, placed their children for adoption or continued to parent. While the filmmakers interview Alexis, a pregnant Black high school student whose mother died when she was 8 years old, classmates can be heard in the distance tormenting her, asking if she’s on the MTV reality show 16 and Pregnant. She’s visibly distraught and crying, illustrating the “damned if you do, damned if you don’t” conundrum women of color experiencing unintended pregnancy often face.

Te’Aundra, another young Black woman, shares her story of becoming pregnant just as she received a college basketball scholarship. She was forced to turn down the scholarship and sought an adoption, but the adoption agency refused to help her since the child’s father wouldn’t agree to it. She says she would have had an abortion if she could start over again.

While anti-choice rhetoric has conflated adoption as the automatic abortion alternative, research has shown that most seeking adoption are personally debating between adoption and parenting. This is illustrated in Janet’s story, a woman with a drug addiction who was raising one child with her partner, but wasn’t able to raise a second, so she sought an adoption. These stories are examples of the many societal systems failing those who choose adoption or students raising families, in addition to those fighting barriers to abortion access.

At times, the film feels repetitive and disjointed, but the stories are powerful. The range of experiences and reasons for having an abortion (or seeking adoption) bring to life the data points too often ignored by politicians and the media: everything from economic instability and fetal health, to domestic violence and desire to finish an education. The majority of abortion stories featured were shared by those who already had children. Their stories had a recurring theme of loneliness and lack of support from their loved ones and friends at a time when they needed it. Research has shown that 66 percent of people who have abortions tend to only tell 1.24 people about their experience, leaving them keeping a secret for fear of judgment and shame.

While many cite financial issues when paying for abortions or as the reason for not continuing the pregnancy, the film doesn’t go in depth about how the patients come to pay for their abortions—which is something my employer, the National Network for Abortion Funds (NNAF), directly addresses—or the systemic issues that created their financial situations.

However, it brings to light the hypocrisy of our nation, where the invisible hand of our society’s lack of respect for pregnant people and working parents can force people to make pregnancy decisions based on economic situations rather than a desire to be pregnant or parent.

“I’m not just doing this for me” is a common phrase when citing having an abortion for existing or future children.

Overall, the film is moving simply because abortion stories are moving, especially for audiences who don’t have the opportunity to have someone share their abortion story with them personally. I have been sharing my abortion story for five years and hearing someone share their story with me always feels like a gift. I heard parts of my own story in those shared; however, I felt underrepresented in this film that took place partly in my home state of Illinois. While people of color are present in the film in different capacities, a racial analysis around the issues covered in the film is non-existent.

Race is a huge factor when it comes to access to contraception and reproductive health care; over 60 percent of people who have abortions are people of color. Yet, it took 40 minutes for a person of color to share an abortion story. It seemed that five people of color’s abortion stories were shown out of the over 20 stories, but without actual demographic data, I cannot confirm how all the film’s storytellers identify racially. (HBO was not able to provide the demographic data of the storytellers featured in the film by press time.)

It’s true that racism mixed with sexism and abortion stigma make it more difficult for people of color to speak openly about their abortion stories, but continued lack of visual representation perpetuates that cycle. At a time when abortion storytellers themselves, like those of NNAF’s We Testify program, are trying to make more visible a multitude of identities based on race, sexuality, immigration status, ability, and economic status, it’s difficult to give a ringing endorsement of a film that minimizes our stories and relegates us to the second half of a film, or in the cases of some of these identities, nowhere at all. When will we become the central characters that reality and data show that we are?

In July, at the progressive conference Netroots Nation, the film was screened followed by an all-white panel discussion. I remember feeling frustrated at the time, both because of the lack of people of color on the panel and because I had planned on seeing the film before learning about a march led by activists from Hands Up United and the Organization for Black Struggle. There was a moment in which I felt like I had to choose between my Blackness and my abortion experience. I chose my Black womanhood and marched with local activists, who under the Black Lives Matter banner have centered intersectionality. My hope is that soon I won’t have to make these decisions in the fight for abortion rights; a fight where people of color are the backbone whether we’re featured prominently in films or not.

The film highlights the violent rhetoric anti-choice protesters use to demean those seeking abortions, but doesn’t dissect the deeply racist and abhorrent comments, often hurled at patients of color by older white protesters. These racist and sexist comments are what fuel much of the stigma that allows discriminatory laws, such as those banning so-called race- and sex-selective abortions, to flourish.

As I finished the documentary, I remembered a quote Chelsea, a white Christian woman who chose an abortion when her baby’s skull stopped developing above the eyes, said: “Knowing you’re not alone is the most important thing.”

In her case, her pastor supported her and her husband’s decision and prayed over them at the church. She seemed at peace with her decision to seek abortion because she had the support system she desired. Perhaps upon seeing the film, some will realize that all pregnancy decisions can be quite isolating and lonely, and we should show each other a bit more compassion when making them.

My hope is that the film reaches others who’ve had abortions and reminds them that they aren’t alone, whether they see themselves truly represented or not. That we who choose abortion are normal, loved, and supported. And that’s the main point of the film, isn’t it?

Abortion: Stories Women Tell is available in theaters in select cities and will be available on HBO in 2017.


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