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Health Care Financing Reform: (58) Rep. Ellsworth's Abortion Amendment

by Professor Will Huhn on November 6, 2009

in Health Care,Wilson Huhn

     One of the most divisive questions in health care financing reform involves funding for abortions.  Pro-life House Democrats have threatened to vote against the House Democratic bill, H.R. 3962, unless it is amended to ensure that federal funds are not spent on abortions.   A member of this group, Rep. Brad Ellsworth (D-IN), has proposed an amendment to the House Democratic bill. 

     On November 3 Representative Ellsworth issued a statement announcing his proposal.  He stated:

Ellsworth's proposal would make 5 key pro-life changes to the bill; effectively preventing federal tax dollars from being used to fund abortions and ensuring Americans have access to pro-life insurance options in the proposed Health Insurance Exchange:

Explicitly prevents all federal tax dollars from being used to provide abortions in the public option;

Prohibits any funds from the US Treasury from paying for abortion services in any of the plans purchased through the proposed Health Insurance Exchange-private or public;

Establishes clear, strict rules for separating public funds from the premiums of private individuals (ensuring that no public funds are ever used to pay for an abortion in any health plan offered on the Health Insurance Exchange);

Guarantees every American participating in the Health Insurance Exchange will always have access to a pro-life insurance option;

Expands conscience protections to prevent the government from discriminating against pro-life health insurance plans.

     Reuters reports that the pro-life organizations Americans United for Life is opposed to the House Democratic bill even with the Ellsworth amendment, stating:

"The Ellsworth Amendment will explicitly authorize federally funded abortions in the public option."

The National Right to Life Committee appears to be similarly opposed, stating that the anticipated "manager's amendment" amounts to a "cosmetic" change.  The NRLC states:

"The bill would create a national federal agency health program, the "public option," and would explicitly authorize that federal agency program to pay for elective abortions. This federal agency program will pay for abortions with federal funds (which are the only kind of funds that federal agencies can spend)."

     These organizations' characterizations of the House Democratic bill and the Ellsworth amendment are disingenuous.  The federal government will not be fully subsidizing the cost of health insurance which is purchased through the Exchange or even through the "public option."  Individuals will instead be paying premiums to purchase their own insurance.  People who earn less than 400% of the Federal Poverty Level will be eligible for federal subsidies to purchase insurance – but those subsidies are provided on a sliding scale, and people who earn more than that amount will be still be paying for health insurance out of their own pockets, even if they purchase insurance through the "public option."

     It is one thing for the law to prohibit the government from paying for abortions, and I am sympathetic to that position.  It is quite another for the law to prevent individuals from purchasing health insurance that would cover abortions, as pro-life organizations appear to be demanding.  In my opinion if such a law were adopted the government would cross the line from simply refraining to pay for abortions to interfering with people's choices in this regard – and that might be construed as "unduly burdening" the right to choose to terminate a pregnancy in violation of the Constitution.

     As a practical matter this question might be easily resolved.  If the cost of an "abortion rider" would be relatively cheap – and insurance companies might be willing to offer such riders at virtually no cost, in light of the lower costs and medical complications associated with abortions as opposed to childbirth – then the whole dispute might simply evaporate.

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