STATUS QUESTIONIS
As you know, the U.S. Senate on December 24 passed its version of universal health care (H.R. 3590: the “Patient Protection and Affordable Care Act”).  Unfortunately, the bill passed with a robust abortion mandate at its center.  Defenders of the unborn had put their political hopes in ‘pro-life’ Democrat Ben Nelson of Nebraska, who was threatening to oppose the bill unless Senate leadership included a Stupak-like amendment excluding all federal abortion funding.  Under pressure from the White House and Senate leadership, Nelson broke at the eleventh hour and vowed his support for the bill as amended by Harry Reid’s “Manager’s Amendment.”  The bill passed in a perfect party line vote without a single Republican supporting it.

MANAGER’S AMENDMENT
    In the final weeks before the vote, the Senate leadership in an attempt to appease the concerns of doubting Democrats assembled a package of individual amendments known collectively as the “Manager’s Amendment.”  Central were a series of abortion compromises aimed at persuading Senator Nelson, the final Dem. holdout against H.R. 3590.  Harry Reid promised him three things:
1.    State opt-out clauses: Individual States would be given the liberty to bar insurance plans that participate in the government program in that State from offering abortion coverage [1].
2.    A firewall between ‘federal’ and ‘non-federal’ funds: Plans that cover abortion must require subscribers to submit two separate checks in payment for their healthcare premiums: one in payment for all health care services except abortion; the other for abortion services [2].
3.    Pregnancy-assistance funds: Money would be earmarked to assist pregnant teenagers and new mothers to continue their education [3].

Reid’s concessions persuaded Nelson to get on board.  But they didn’t go far enough for pro-lifers (see statements by the National Right to Life Committee and the U.S. Conference of Catholic Bishops [4]); and they went too far for pro-abortion groups (see statements by Planned Parenthood Federation of America [5], the National Organization for Women [6] NARAL [7] and the National Women's Law Center [9]). 

COMMENTARY
1. The original Senate bill (pre-Manager’s Amendment) proposed a huge government run medical plan called the “public option” to compete with private insurance companies.  To appease Dem. critics of this idea (e.g., Sen. Lieberman), Reid’s Manager’s Amendment proposes in its place “multi-state” health plans made available by private insurance companies (e.g., Blue-Cross/Blue-Shield) but administered by the federal government (specifically, the “Office of Personnel Management”).  Every State will offer a group of such cooperative plans in what are called “exchanges.”  The Manager’s Amendment requires that there is at least one insurance plan in every exchange that does not provide coverage for abortion [9].  This means that every other federally administered plan in every State can cover abortions.

2. Reid’s intention for introducing the so-called “firewall” between abortion related funds and non-abortion related funds in government participating plans was to be able to claim that ‘no federal funds’ will be used to subsidize abortion, only the private funds of individual subscribers who choose to participate in an abortion providing plan.  This is a smoke screen (as NRLC says, a “bookkeeping gimmick” [10]).  All funds collected as premiums for medical plans administered by the federal government are by that very fact federal funds.

3. As stated above, the Manager’s Amendment requires subscribers to abortion-providing-plans to pay two premiums.  This would seem to ensure that all subscribers to such plans know precisely what they are doing and then choose to do it.  But the amendment seems to permit (and even require; see language of text in footnote 11 below) abortion providing plans to hide the fact that the second surcharge is required in payment for abortion [11].

4. Last August, when the health care debate was heating up, an early version of the House bill (HR 3200) permitted the Secretary of HHS to designate abortion as an “essential benefit” of any government run health care plan [12].  Under subsequent compromises this liberty was apparently excluded from the Senate version [13].  Apparently.  But in early December 2009 the Senate approved the “Mikulski Amendment” (No. 2791) which grants the same Secretary of HHS entirely separate authority to mandate that all government run plans cover procedures “with respect to women” that are designated as “preventive health services”.  Commenting on this, the NRLC writes: “If Congress were to grant any Executive Branch entity sweeping authority to define services that private health plans must cover, merely by declaring a given service to constitute ‘preventive care,’ then that authority could be employed in the future to require all health plans to cover abortions” [14].  NRLC warns that pro-abortion groups have already gone on record as stating that abortion should be designated as a type of “preventive care” for women.  It’s not implausible (and I think it’s likely) that the Secretary of HHS would use this separate authority granted by the Mikulski Amendment to mandate that all plans cover abortion as a “preventive service,” even while refraining from designating it as an “essential service.”

DIRECTION FROM HERE?
    Harry Reid and Nancy Pelosi in consultation with the White House will now meet to reconcile the Senate and House versions.  The House version includes the Stupak-Pitts Amendment explicitly prohibiting abortion from being funded by any plan administered by the federal government.  As we have seen, the Senate version has no such exclusion.  We can be certain that in the reconciliation process the Congressional leadership will drop the Stupak restrictions in favor of the more liberal provisions of the Senate version.  Although things look pretty dire, we still have one trick left up our sleeves.
    Pro-life Democrat Bart Stupak, commenting on the Manager’s Amendment on December 19, publicly stated that “the Senate abortion language is not acceptable” [15].  Recall that Stupak threatened Speaker Pelosi once before with mounting a mutiny of pro-life Dems against universal health care.  And the threat yielded a great victory on the up-or-down vote on the House floor on the Stupak-Pitts Amendment.
    The reconciled bill will require a final vote by both Houses of Congress before it will go to the President’s desk.  Stupak is again threatening a House revolt if a final concession excluding all federal funding of abortion is not agreed to. 
We need to pray and fast for Representative Stupak …
    1) that he will be successful in marshalling enough opposition among moderate Dems to pressure Pelosi and Reid to retain the prohibitions introduced by the Stupak-Pitts amendment;
    2) that he will not, like Ben Nelson, cave in under the enormous pressure put on him by pro-abortion members of Congress and the White House. 

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Notes:

1. “A State may elect to prohibit abortion coverage in qualified health plans offered through an Exchange in such State if such State enacts a law to provide for such prohibition” (Section 1303 (a) (1); p. 38).
2. “In the case of a plan [which provides abortion coverage], the issuer of the plan shall ‘‘(i) collect from each enrollee in the plan (without regard to the enrollee’s age, sex, or family status) a separate payment for each of the following: “(I) an amount equal to the portion of the premium to be paid directly by the enrollee for coverage under the plan of services other than [abortion]; and ‘‘(II) an amount equal to the actuarial value of the coverage of [abortion] services…and ‘‘(ii) shall deposit all such separate payments into separate allocation accounts” (Sec. 1303 (b) (2) (B), p. 41).
3. “The Secretary, in collaboration and coordination with the Secretary of Education (as appropriate), shall establish a Pregnancy Assistance Fund to be administered by the Secretary, for the purpose of awarding competitive grants to States to assist pregnant and parenting teens and women” (Sec. 10212 (a), p. 134).
4. See http://www.nrlc.org/AHC/NRLCReidBillScoreLetter.pdf and http://www.usccb.org/comm/archives/2009/09-267.shtml
5. See http://www.plannedparenthoodaction.org/healthreform/683.htm
6. See http://www.now.org/press/12-09/12-24.html
7. See http://www.prochoiceamerica.org/news/press-releases/2009/pr12192009_healthreformsenate.html
8. See http://www.nwlc.org/details.cfm?id=3781&section=newsroom
9. “In entering into contracts under this subsection, the Director shall ensure that with respect to multi-State qualified health plans offered in an Exchange, there is at least one such plan that does not provide coverage of [abortion]” (Sec. 1334 (a) (6); p. 56).
10. National Right to Life provides an excellent summary of the manager’s amendment at http://www.nrlc.org/AHC/NRLCManagersAmendScoreLetter.pdf .  See also:
http://www.nrlc.org/AHC/NRLCReidBillScoreLetter.pdf .
11. (A) “A qualified health plan that provides for coverage [for abortion] … shall provide a notice to enrollees, only as part of the summary of benefits and coverage explanation, at the time of enrollment, of such coverage.”
      (B) “Any advertising used by the issuer with respect to [plans that cover abortion], any information provided by the Exchange, and any other information specified by the Secretary [of HHS] shall provide information only with respect to the total amount of the combined payments for [abortion] services…and other services covered by the plan.” [Section 1303 (b)(3)(A) and (b)(3)(B); pp. 44-45].
12. Helen Alvare and I comment on this provision in our August CLF blast, “Health Care Proposals Pending before Congress: Ethical Questions a Catholic Should Ask.”
13. “(i) Nothing in this title (or any amendment made by this title), shall be construed to require a qualified health plan to provide coverage of [abortion] services…as part of its essential health benefits for any plan year; and (ii) the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion] services…as part of such benefits for the plan year” (1303 (a) (1) (A).
14. See http://www.nrlc.org/AHC/MikulskiAmendLetter.pdf 
15.  See Stupak’s full statement at: http://www.house.gov/apps/list/speech/mi01_stupak/morenews/20091219language.html

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