Nelson Restrictions Most Likely Outcome of Reconciliation Process

Jodi Jacobson

Reconciliation to pass health reform will most likely result in adoption of the onerous "Nelson compromise" on abortion coverage, though Bart Stupak wants his own abortion ban. 

As health reform seems to be approaching final passage, anti-choice advocates are ratcheting up pressure to completely eliminate coverage of abortion care, now a basic component of the insurance coverage held by the majority of currently-insured women in the United States.

Meanwhile, discriminatory restrictions contained in the Senate bill–originally incorporated to appease Senator Ben Nelson and the U.S. Conference of Catholic Bishops (which later rejected the language anyway)–are likely to become law.

President Obama is expected to unveil his final health care package in a news conference later today. The plan, the basics of which were released before last week’s health summit, includes provisions to extend health coverage to about 30 million uninsured Americans, eliminate pre-existing conditions, expand pharmaceutical benefits for the elderly, and subsidize coverage for lower-income Americans.

According to the New York Times, the President is also considering recommendations made by Republicans at the daylong forum, including offering tax-advantaged medical savings accounts and increased payments to doctors who treat Medicaid patients.

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Nonetheless, the broader lines of the final health care bill have already been drawn.  It is almost certain, especially given an announcement this morning by Senator Tom Harkin, that the health reform bill will have to be passed through a process known as reconciliation, a parliamentary procedure through which a bill is passed with a simple majority vote rather than the 60 votes required to overcome a filibuster. 

For this to happen, the House of Represenatives would first pass the Senate bill originally passed in late December last year.  Both the House and Senate would then have to pass a “reconciliation bill,” one that literally “reconciles differences” between the House, Senate, and White House proposals.  Unfortunately, however, reconciliation means that it will be nearly impossible, at least in the short term, to remove restrictions on women’s health coverage now contained in the Senate bill.

This is because the reconciliation process can only be used to address subjects germane to the budget. The Nelson language, which has a zero net effect on spending by the federal government, is not germane and therefore can not be addressed as part of reconcliation. It could only be addressed in a future bill aimed at making technical fixes to health reform. While many hope corrections to health reform passed now will be made later, there is no guarantee of having such a bill introduced or passed.

The Nelson language does the following, as described in more depth here:

  • Requires every enrollee–female or male–in a health plan that offers abortion coverage to write two separate checks for insurance coverage. 
  • Includes “conscience clause” language that protects only individuals or entities that refuse to provide, pay for, provide coverage for, or refer for abortion, removing earlier language that provided balanced non-discrimination language for those who provide a full range of choices to women in need. 
  • Prohibits insurance companies by law from taking into account cost savings when estimating the costs of abortion care and therefore the costs of premiums for abortion care.
  • Eliminates the provision in earlier versions of the Senate bill and in the original Capps language in the House bill to ensure that there is at least one insurance plan in each exchange that offers and one that does not offer abortion coverage. 

Bottom line: in terms of abortion coverage, women will not only be worse off with this version of health reform, they will also face institutionalized sex discrimination for basic reproductive health care in a sweeping law passed by a Democratic White House and Congress.

Pro-choice reproductive health providers support health reform but remain steadfastly against the Nelson provisions.  Planned Parenthood, for example, strongly opposes it.

“If enacted, President Obama’s proposal would extend health care coverage to tens of millions of women and families, guarantee access to affordable preventive screenings for cancer and other life-saving tests, protect women against gender discrimination by private insurers, and end the practice of dropping coverage because of pre-existing conditions,” said Cecile Richards, President of Planned Parenthood Federation of America.

And, she noted, “it would significantly increase access to reproductive health care.” For example, Obama’s proposal would expand family planning under Medicaid, which would significantly increase access to essential preventive health care for millions of women.

At the same time, however, current health reform bills would result in the loss of other aspects of essential reproductive health care, including coverage for abortion, which most women currently have under private health insurance plans.

“If the current Senate language introduced by Senator Ben Nelson is maintained,” Richards says, “it would result in the most significant restriction in access to abortion coverage in the nearly 35 years since the U.S. Congress first adopted the Hyde Amendment.”

Under the burdensome Nelson provision in the Senate health care reform bill, most private health insurers would no longer offer coverage for abortion.  Since most women with private health insurance have coverage for abortion, the Nelson provision would take away coverage that women have now.

Independent analysts have concluded that the Nelson provision will result in most private health insurance companies dropping coverage for abortion coverage altogether.  Moreover, because it requires individuals who choose to purchase comprehensive coverage to make two separate payments — one for abortion coverage and one for all other treatments, screenings, and procedures, it is widely seen as unworkable.

For that reason, Planned Parenthood has opposed the Nelson provision from the start and continues to oppose it.The Nelson provision is simply unacceptable,” states Richard.

Moreover, Planned Parenthood notes: “This is exactly the opposite of what President Obama and many members of Congress have pledged under health care reform. That’s why we are asking the president and Congress to fix the Nelson provision in a technical fix bill later on.”

Meanwhile, Congressman Bart Stupak (D-MI), is “beating his chest,” according to several pro-choice advocates, about his own abortion ban.

As noted above, the Senate bill remains the basic platform for both the Senate and White House proposals.  Because it is in the bill passed by the House last fall, the Stupak abortion ban would be effectively eliminated under reconciliation. And because it also is not germane to the federal budget, it can not be added back into the reconciliation bill through an amendment.  The Stupak amendment would result in many of the same problems as the Nelson language, but goes even further.

Stupak immediately denounced the President’s health reform proposal when it was released last week, and in doing so continued to spread misleading information on federal funding of abortion care in the Senate bill.

I was pleased to see that President Obama’s health care proposal did not include several of the sweetheart deals provided to select states in the Senate bill. Unfortunately, the President’s proposal encompasses the Senate language allowing public funding of abortion. The Senate language is a significant departure from current law and is unacceptable. While the President has laid out a health care proposal that brings us closer to resolving our differences, there is still work to be done before Congress can pass comprehensive health care reform.?

The Senate bill does not contain language allowing public funding of abortion and indeed, as noted above will result in the elimination of women’s access to private coverage for abortion care.

Yet Stupak has stated he will vote against the final bill if it does not include his own abortion ban, and is threatening to reintroduce it through either appropriations or through any future bill meant to make technical corrections to the health reform bill.  Not surprisingly, the US Conference of Catholic Bishops and other allies are against reconciliation for these same reasons.  Bottom line is that this fight is not over.

In a statement Planned Parenthood expressed deep concern “about increased pressure by Congressman Bart Stupak (D-MI) and his anti-choice allies in the House to reintroduce the Stupak abortion ban.  The Senate already rejected the Stupak abortion ban because women across the country spoke out in opposition to it.  The Stupak ban should never be considered again.”

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