Was Money a Factor in the Losing Fight for Abortion Care in Health Reform?

Megan Carpentier

How did back-bench conservative Democrats manage to win restrictions on access to abortion in health reform? One answer may be found in the lobbying disclosures of the pro-choice movement.

In the past several months, the pro-choice movement has faced its toughest challenges during the Obama administration to date: the insertion of language into the House and Senate health reform bills that, if passed, would place the most onerous federal restrictions on women’s access to abortion since Roe v. Wade. Both threats came from Democrats, one set of restrictions placed in the House bill by Congressman Bart Stupak (D-MI) and the other in the Senate bill by Senator Ben Nelson (D-NE).

Throughout the process, pro-choice advocates and supporters tried desperately to reverse the restrictions: calling their members of Congress, donating to organizations that lobby for pro-choice policies, and more recently promoting the candidacy of a pro-choice female candidate—Connie Saltonstall—against Stupak.

But how did those restrictions get into the health reform bills of a Democratic Congress in the first place? There is obviously a range of factors, including what was and was not anticipated. 

The pro-choice movement’s support for health reform was supposed to have hinged on language, negotiated by Congresswoman Lois Capps, to preserve the status quo of the Hyde Amendment, as terrible as it is, a law that is attached to appropriations bills from year to year and which prevents federal funding of abortions except in cases of rape, incest or the life of the mother.  The presumption at the outset was that keeping things under the radar and putting forth the Capps Amendment would ensure passage of health reform without a fight over abortion.

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The presumption proved completely wrong.

Instead, first Stupak and then Nelson amended their respective bills to dramatically restrict the rights of women even to purchase private insurance coverage for abortion care.  And this week the health reform bill passed with the Nelson language intact.

So how did anti-abortion advocates and a back-bench conservative Democrat manage to so successfully persuade a Democratically-controlled (and presumably pro-choice-led) Congress to allow a vote on such a restrictive bill — let alone how did it come to pass? One answer may be found in the lobbying disclosures of the pro-choice movement.

Between 2008 and 2009, pro-choice organizations actually reduced their lobbying expenditures from $1.8 to $1.3 million. Planned Parenthood alone accounted for $385,000 of that $500,000 reduction in lobbying expenses; the rest came mostly from reductions made by NARAL and the Reproductive Health Technologies Project (RHTP).

Planned Parenthood told Rewire, “We think grassroots lobbying was one of the most effective tactics on healthcare reform. We wanted to invest more in [grassroots efforts] and make sure Congress heard from their constituents on this rather than from us.” PPFA in fact received grants from individual donors to conduct a grassroots lobbying campaign but not so much for lobbying Congress directly–though neither the grassroots strategy nor the DC-based lobbying effort was successful in the end in keeping abortion restrictions out of the final bill.

In the meantime, over the same period, specific anti-abortion lobbyists (represented mostly by the National Right to Life Committee and the American Life League) increased their spending from $600,000 to $710,000–a figure that does not include any of the official or unofficial lobbying undertaken by various religious groups, like the U.S. Conference of Catholic Bishops, or grassroots organizing conducted on the issue of health reform and abortion care such as through churches mobilized by the USCCB.

One question is why, with various reproductive health issues on the agenda, from the global gag rule to the provider “conscience” laws, were pro-choice groups drastically reducing their spending on lobbyists in 2009?  Because they finally had a full Democratic majority in power?

This can’t be the whole story: Even NARAL president Nancy Keenan told me in an interview before Stupak went to a vote that “A Democratic majority is not a pro-choice majority.”

Recognition that giving Democrats the reins did not necessarily mean success for a pro-choice agenda should have been clear early on in the Obama Administration. First on the pro-choice agenda was the global gag rule, with which Obama dispensed early on.  But while the end of the global gag rule was an important step, it shouldn’t have been allowed to mollify the pro-choice movement nor make them take a softer line on the administration.

Still, Democratic leaders asked the pro-choice movement to stay out of health reform debates initially to avoid politicizing the reform process, and rather than engaging the fight directly, both pro-choice Democrats and pro-choice groups accepted the Capps compromise language early on — apparently expecting that unilateral disarmament on healthcare reform would convince their opponents to remain out of the debate.

Bart Stupak and his backers in the United States Conference of Catholic Bishops and in the broader “pro-life” movement didn’t exactly take the pro-choice movement up on their olive-branch offering, choosing instead to do what it is that lobbyists normally do: push for as much as possible for the cause they represent. And push they did, introducing language in various committees, at first with little success–something for which Planned Parenthood takes due credit. 

But when push came to shove, House Speaker Nancy Pelosi announced that if putting the Stupak anti-choice language to a vote on the House floor and letting it pass was the cost of healthcare reform, so be it. In the end, pro-choice advocates were left with less than a week’s notice to marshal their massive but nascent grassroots campaign to defeat it.

Successful lobbying campaigns, like the one conducted by Stupak’s supporters, aren’t ginned up in a week or even a few months: they’re long, sustained sieges involving grassroots organization, lead time and constant pressure from lobbyists on members of Congress.

The pro-choice movement, having taken a pass on doing anything proactive to get a healthcare bill that recognized abortion as central to healthcare didn’t have the resources or sustained intelligence gathered to mount a last-minute reactive campaign either. And, in either case, they had already made the decision to support healthcare reform writ large, so they were stuck with a dual message: pass healthcare reform, but remove the abortion restrictions. Those kind of mixed messages make for a difficult grassroots campaign, and can make it sound like passing healthcare is of more importance that preserving women’s access to abortion services.

On the Friday before the final vote this weekend, Planned Parenthood spokesman Tait Sye told me: “Planned Parenthood is committed to fixing our broken healthcare system. Congress must fix the Nelson provision as part of healthcare reform and guarantee that reform will not result in women losing benefits they currently have.”

Of course, given the procedural maneuvers through which the House had to go to pass the Senate bill, and given the strength of the mobilization by an anti-choice minority, the only way to fix the Nelson provision now will be to go back at a later date and try to convince the very same Democrats who could not stand up for abortion care as health care during the process to now rescind those restrictions embedded in the bill. With the majority of the reform provisions, including the individual mandate, not set to go into full effect until 2014, Congress will likely wait a considerable amount of time before attempting any changes, and certainly with the 2010 elections so close at hand.

Meanwhile, coverage for abortion care will be eroded. There are certainly uninsured women who will eventually obtain coverage in a somewhat reformed market to the benefit of their health — including their reproductive health.  But there are also women that will likely lose access to their current coverage of abortion care because of this bill and this debate, and others, like the women who work for the Republican National Committee and the state of South Carolina who will lose their coverage more quickly as a result of political decisions.

Pro-choice women rely on (and donate to) groups like Planned Parenthood and NARAL Pro-Choice America to stand up and advocate for their access to abortion, first and foremost, and to hold the feet of supposedly pro-choice politicians to the fire on abortion access even when the going gets tough (and the tough go shopping for healthcare reform votes among rabidly anti-choice Democrats).

But, this time, at least, pro-choice advocates were not as willing as their pro-life counterparts to be the skunks at the garden party “just” to save access to abortion, or perhaps because they feared losing their own access to Democratic politicians who, unfortunately, too easily sacrificed the pro-choice movement for a political victory without putting up much of a fight on behalf of the pro-choice women who elected them. 

Roundups Politics

Campaign Week in Review: Clinton’s ‘Military Families Agenda’ Includes Calls for Family Leave, Child Care

Ally Boguhn

As part of her plan, Clinton would move to “ensure that family leave policies meet the needs of our military families so that, for example, new parents, as practical and consistent with mission, can care for their families at a pivotal moment.”

This week on the campaign trail, Democratic presidential candidate Hillary Clinton released her agenda for helping military families, and anti-choice voters remain ambiguous about Donald Trump’s positions on abortion.

Clinton Releases Plan to Expand Family Leave and Access to Child Care for Military Families

Clinton released her “Military Families Agenda” on Tuesday, detailing the former secretary of state’s plan, if elected, to support military personnel and their families.

“Military families, who serve alongside our service members, are vital to the strength of our military and the health of our nation,” reads Clinton’s plan. “Ensuring our military families have the support they need to balance service to the nation with the demands of family life helps our nation attract and retain the most talented service members.”

As part of her plan, Clinton would move to “ensure that family leave policies meet the needs of our military families so that, for example, new parents, as practical and consistent with mission, can care for their families at a pivotal moment.”

Clinton also vowed to improve access to child care for both active duty and reserve service members “both on- and off-base, including options for drop-in services, part-time child care, and the provision of extended-hours care, especially at Child Development Centers, while streamlining the process for re-registering children following a permanent change of station (PCS).” ​She did not say exactly what these improvements would entail.

“Service members should be able to focus on critical jobs without worrying about the availability and cost of childcare,” continues Clinton’s proposal.

Paid family leave has been a critical issue for Democrats on the campaign trail, and both Clinton and rival Democratic candidate Sen. Bernie Sanders (I-VT) rolled out clarifications and additional details about their proposals on the issue in January. Though the two candidates support similar federal policies, they would pay for them in different ways, with Clinton proposing raising taxes on the wealthy and Sanders pushing a payroll tax on workers and their employers.

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Clinton released a plan in early May to address the rising cost of child care in the United States, proposing that the federal government cap child-care costs at 10 percent of a family’s income, though the candidate’s campaign has yet to release details on how it would be implemented and funded.

Analysis conducted by the Economic Policy Institute (EPI) in 2015 found that increasingly, “child care is out of reach for working families,” and in in 33 states and Washington, D.C., child-care costs were higher than the average cost of in-state tuition at public universities.

Anti-Choice Voters Unsure About Trump’s Stance on Abortion

Recent polling found that the majority of voters who describe themselves as “pro-life” aren’t sure about whether they agree with presumptive Republican nominee Trump’s position on abortion.

The poll, conducted by Gallup during the first week of May, found that 63 percent of anti-choice respondents were unable to say whether they agreed or disagreed with Trump’s stance on abortion. Almost equal shares of anti-choice respondents said they agreed or disagreed with the Republican candidate: 19 percent agreed while 18 percent disagreed.

The majority of overall respondents—56 percent—had “no opinion” on whether they agreed with Trump on abortion or not. Just 13 percent of those polled agreed.

Meanwhile, 38 percent of those polled who considered themselves “pro-choice” said they agreed with Clinton’s position on abortion while 47 percent had “no opinion.” Twenty-two percent of all people surveyed said they agreed with Clinton, while 32 percent disagreed and 46 percent had no opinion.

Gallup’s findings follow months of ambiguity from both Republicans and the anti-choice community about Trump’s position on reproductive rights. Though Trump has consistently pushed his opposition to abortion on the campaign trail, his past statements on “punishing” abortion patients should abortion become illegal, and willingness to change the GOP platform on abortion to include exceptions for cases of rape, incest, and life endangerment have landed him in hot water with some conservatives.

Anti-choice activists, however, are slowly starting to warm to the presumptive Republican nominee. Troy Newman, president of the radical group Operation Rescue, signaled he may be willing to back Trump in a blog post in May instructing the candidate to “earn” the anti-choice vote. Priests for Life and the Susan B. Anthony List officials both backed Trump in statements to the Washington Times, though they had previously spoken out against the Republican.

What Else We’re Reading

Eric Alterman explains in a piece for the Nation that the media’s willingness to provide a false equivalency to both sides of every issue “makes no sense when one side has little regard for the truth.”

“I don’t want to sound too much like a chauvinist, but when I come home and dinner’s not ready, I go through the roof,” said Trump in a 1994 interview with ABC News when discussing his romantic relationships. “I think that putting a wife to work is a very dangerous thing …. If you’re in business for yourself, I really think it’s a bad idea.”

Sanders spotlighted Native American communities while campaigning in California ahead of the state’s primary. “This campaign is listening to a people whose pain is rarely heard—that is the Native American people,” said Sanders at a Sunday campaign rally. “All of you know the Native American people were lied to. They were cheated. Treaties they negotiated were broken from before this country even became a country. And we owe the Native American people a debt of gratitude we can never fully repay.”

Fusion’s Jennifer Gerson Uffalussy questions why Trump has said so little about the the Zika virus.

CNN embedded in a chyron a fact-check on Trump’s false claims about nuclear weapons.

Ohio removed thousands of voters from the state’s voter registration rolls because those voters had not cast ballots since 2008, in a move that could reportedly help Republicans in the state. Though states do occasionally cleanse their rolls, “only a handful [of states] remove voters simply because they don’t vote on a regular basis,” reports Reuters.

Analysis Law and Policy

How Conservatives Are Using a 2012 Supreme Court Health-Care Case to Challenge Trans Rights

Jessica Mason Pieklo

Buried in the legal complaint challenging the Obama administration's recent agency actions on transgender rights is a legal claim designed to appeal directly to conservative judges.

Back in 2012, when conservatives’ first challenge to the Affordable Care Act (ACA) landed before the U.S. Supreme Court, the Court ruled that much of the health-care reform law was constitutional. But buried in that opinion was a poison pill—one with which conservatives are trying to kill off the Obama administration’s recent actions to protect transgender rights.

Eleven states and their officials sued the Obama administration in Texas federal court on Wednesday over its recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity. Much of the joint lawsuit argues, essentially, that the Obama administration is illegally trying to rewrite federal civil rights statutes in a series of administrative agency actions called “guidances.” Such claims are effectively baseless, as Rewire Senior Legal Analyst Imani Gandy has already done an excellent job demonstrating here and here.

But still, buried in the lawsuit filed Wednesday is one additional claim that could prove irresistible for a conservative federal court judge in Texas—namely, District Judge Reed O’Connor, a 2007 President George W. Bush appointee who is expected to hear the case.

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The bulk of the Obama administration’s guidance lets some schools and employers know that it is the official, legal position that current civil rights statutes like Title VII and Title IX protect transgender students from discrimination on the basis of their sex. Should those entities instate policies that conflict with that interpretation, then they risk a loss of federal funding. Conservatives argue that threat of funding loss is unconstitutional. And they point to National Federation of Independent Businesses (NFIB) v. Sebelius, the decision that largely upheld the Affordable Care Act, for support.

“The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion,” the Court wrote in NFIB. “[T]he expansion accomplishes a shift in kind, not merely degree,” the Court continued. “The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” The effect of that decision was to prevent the Obama administration from using that funding as the carrot to induce all states into setting up their own health-care exchanges and expanding Medicaid.

That question—whether the Obama administration’s guidance in the reading of Title VII and Title IX is a fundamental shift, or more of a shift in degree—is exactly what conservatives are pressing a federal district court judge to answer.

“By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy,” the complaint challenging the Obama administration guidance states.

That, right there, is the same “coercion” argument advanced and accepted by the Supreme Court in 2012.

The lawsuit challenging the transgender guidances borrows heavily from the language in NFIB‘s opinion, including quoting that the federal government “puts a gun to the head” of states when it makes the receipt of federal dollars dependent on doing or not doing a particular action.

But the thing is, the Obama administration’s guidance on transgender rights and its notice that certain federal funds hinge on compliance is not at all like the fight in NFIB. This is because of one key, compelling reason: In NFIB, states were not required to buy into the Affordable Care Act. The law was just written in a way that was designed to entice them into doing so.

That is not the case with the Obama administration’s guidance on transgender rights. Schools and federal agencies—in other words, recipients of federal funds—are already required to comply with federal law. Should they not, whether it be in the form of implementing discriminatory bathroom policies or refusing to hire an employee based on their gender identity, those federal funds recipients risk losing those federal dollars.

Think of it this way. The law describes the kind of “spending” relationship between the states and the federal government like it’s a contract. The federal government “offers” the states money to support certain state programs, whether they be public schools or health-care centers. But that “offer” has conditions, and one of those conditions is that the state recipient of those dollars obeys federal law. And in this case, obeying federal law means allowing transgender people to use the bathroom that aligns with their identity.

But the challengers argue that, effectively, the Obama administration has changed the terms of their contract; they say Title VII and IX were never intended to protect transgender students, and instead demand the laws require sex-segregated facilities like bathrooms and locker rooms.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the complaint states.

The argument advanced by conservatives that federal agencies lack the power to interpret the statutes they are charged with enforcing is disingenuous at best. But it’s also an argument conservative federal courts have been willing to accept in the past, so it’s entirely likely a conservative judge would accept that argument here too. Which is exactly why of the 11 states joined in the lawsuit, conservatives chose Texas—and the ultra-conservative Fifth Circuit Court of Appeals—to bring this claim.

There are a lot of unanswered questions regarding the legitimacy of Wednesday’s lawsuit. It’s not entirely clear the plaintiffs have standing to bring this suit in the first place, and that’s not even touching on all the legal deficiencies Gandy already mentioned. But if we’ve learned anything from the health-care reform litigation, it’s that conservatives care very little if the facts and law are on their side, so long as at least one federal court is willing to enable their attacks on policies they lack the legislative and political power to block in the first place.