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Health Care Financing Reform: (62) The Stupak Amendment

by Professor Will Huhn on November 8, 2009

in Constitutional Law,Health Care,Wilson Huhn

     This posting contains a description of the Stupak Amendment restricting the use of federal funds to pay for abortions and links to articles and sites discussing the amendment.

     Last night the House adopted an amendment sponsored by Bart Stupak (D-MI) prohibiting the use of federal funds for purchasing health insurance covering abortion.  This amendment was made a part of H.R. 3962 just before that landmark bill was enacted by the House of Representatives.  According to an article by Patrick O'Connor at The Politico, the inclusion of the amendment secured the support of the United States Conference of Catholic Bishops for the entire health care bill.  As it turned out, the amendment was necessary to obtain passage of the bill – 64 Democrats voted for the amendment, without whom the larger bill would not have come close to passage.  

     Here is a link to the Stupak Amendment itself, and here is a link to a statement issued by Representative Stupak.  Here is a thoughtful article by David M. Herszenhorn of the New York Times about the events leading up to the adoption of the Stupak Amendment.  Here is an excerpt from a statement by the Catholic Bishops supporting the amendment:

Despite some claims to the contrary, H.R. 3962 does not reflect the status quo on abortion. It fails to explicitly and clearly include the longstanding policy prohibiting federal funding of elective abortion and plans which include elective abortion (Hyde Amendment). Medicaid, Medicare, Children's Health Insurance Program (CHIP), and other federal health legislation include this provision. Currently H.R. 3962 has some helpful provisions on conscience protection and non- preemption of state laws, but it utterly fails to maintain current prohibitions on abortion mandates and abortion funding. Instead it creates elaborate measures requiring people to pay for other people's abortions with their taxes, private premiums or federal subsidies. Significantly, the Federal Employee Heath Benefit Program, which covers all members of Congress and their families, has long been governed by the Hyde amendment in all its aspects and is widely seen as a model for reform.

Health care expert Ezra Klein, writing for the Washington Post, offers the following criticism of the amendment:

Because of the limits placed on the exchanges, most of the participants will have some form of premium credit or affordable subsidy. That means most will be ineligible for abortion coverage. The idea that people are going to go out and purchase separate "abortion plans" is both cruel and laughable. If this amendment passes, it will mean that virtually all women with insurance through the exchange who find themselves in the unwanted and unexpected position of needing to terminate a pregnancy will not have coverage for the procedure. Abortion coverage will not be outlawed in this country. It will simply be tiered, reserved for those rich enough to afford insurance themselves or lucky enough to receive from their employers.

Several Democratic members of the House spoke out passionately against the amendment during the debate.  Jim at Irregular Times quotes Rep. Louise Slaughter, Chair of the House Rules Committee, as saying: 

âI am very concerned about this bill because in my own case (and many of my colleaguesâ) it means 30 or 40 years of our life is being cancelled out with this amendment. The things that we have fought for, that we are driving now? I am afraid young women, poor women who cannot afford to buy their own insurance policy out of their own pocket, will go back. Back to the back alley. I dread to see that day.â

     The amendment prohibits the federal government from offering coverage for abortions through the public option even if people pay the entire cost of that health insurance.  It also prohibits people from purchasing coverage for abortion services from private insurance companies through the Exchange if they receive any form of federal funding such as a direct federal subsidy or state Medicaid funding that is partially paid for with federal funds.  The only exceptions would be for cases where the woman's life is threatened by a physical disorder, injury, or illness or arising from the pregnancy itself, and in cases where the pregnancy was the result of rape or incest. 

     In all other cases women would have to purchase separate coverage for abortions, but the Stupak Amendment makes even that option more expensive by providing that:

"administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage or plan."

     This provision is significant because if left to themselves private health insurance companies would probably cover abortions at no extra cost – in fact, a health insurance policy that covers contraception and abortion should cost less than one that does not, because childbirth is so much more expensive than either of the other alternatives.  In my opinion, the Stupak Amendment makes it more expensive for women to purchase private health insurance coverage for abortions than it would have been without the bill.

     As I discussed in postings Number 58 and Number 30 in this series, it is constitutional for the government to refuse to pay for abortions, but it is unconstitutional for the government to impose an "undue burden" upon a woman seeking to terminate a pregnancy or to place a "substantial obstacle" in her path.  Under a largely private system of health care these two principles could be easily coexist, but now that the government is becoming more involved in the funding and provision of health care these two principles are becoming more difficult to reconcile.  At the extreme, where the government directly provides all health care as in Great Britain, the government's refusal to perform abortions would constitute an absolute denial of the opportunity to secure an abortion.  In light of the increasing federal funding and regulation of health care that H.R. 3962 will bring about, the courts will have to determine whether the Stupak Amendment unduly interferes with women's reproductive freedom.

{ 1 comment }

Father November 11, 2009 at 3:23 pm

Your idea of what "undue burden" means is laughable. there are multiple places where a man or woman can prevent a pregnancy before life is created.

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