Why The Stupak Amendment Is A Monumental Setback For Abortion Access

If you thought that just because abortion is a constitutional right and part of basic reproductive health care it would be available in the reformed health insurance market known as the Exchange, think again. The Stupak Amendment, passed Saturday night by the House of Representatives after a compromise deal fell apart, potentially goes farther than any other federal law to restrict women’s access to abortion.

The claim that it only bars federal funding for abortions is simply false. Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

Bart Stupak and his anti-choice partners like to suggest that their amendment merely extends the Hyde Amendment about public funding for abortion to the new health care bill. In actuality, over time this amendment would end reproductive choice insurance coverage entirely.

The amendment designates two areas where abortion coverage could not be offered – the public option, and on any plan receiving subsidies in the exchange. Because insurance companies would have to take all comers and not deny anyone coverage under the new bill, they would not be able to restrict customers who receive subsidies. So effectively, every plan in the exchange would not allow abortion coverage.

Right now, the exchanges are restricted to the self-employed, the uninsured, and certain small businesses. But there are provisions in both the House and Senate bills to open the exchanges over time. In the House, that exchange could theoretically be opened up fairly rapidly:





The Senate has language like that as well, albeit at a slower rate. Sen. Ron Wyden has been trying throughout the debate to open the exchanges more and more, and Max Baucus agreed in the Senate Finance Committee to work toward some version of the opening of exchanges. So we can expect something along those lines going forward.

Only now, with the Stupak amendment, every one of those expansions, to mid-size and then large employers and possibly even individuals who are offered employer coverage, would further restrict coverage for reproductive choice services. If the exchanges do expand – and they should – the result would be making all abortions purely an out-of-pocket scenario.

And then there’s the question of what is considered, in technical medical terms, as an abortion. Hospitals determine a terminated pregnancy where the fetus was not expelled as an abortion, requiring a “D&C” procedure. Under the Stupak amendment, insurance companies would not be allowed to cover this procedure either. It’s possible that this would fall under the “life of the mother” exemption, which is in the bill, but that would only be the case if the life of the mother was directly threatened. There is no “health of the mother” exemption.

Stupak and his anti-choice cadres would counter that women could get a “rider” for abortion services, but asking women to plan for an unplanned event is offensive to the pro-choice community.

Progressives generally support opening the exchanges, which would also open access to the public option. Under the Stupak amendment, that would have the effect of chipping away at abortion access slowly but surely.

UPDATE: McJoan has much more on this.

(b) OPTION TO PURCHASE SUPPLEMENTAL COVERAGE OR PLAN -
Nothing in this section shall be construed as prohibiting any nonfederal entity (including an individual or a State or local government) from purchasing separate or supplemental coverage for abortions for which funding is prohibited under this section, or a plan that includes such abortions, so long as-
(1) Such coverage or plan is paid for entirely using funds not authorized or appropriated by this Act; and
(2) Such coverage or plan is not purchased using-
(a) individual premium payments required for an Exchange-participating health benefits pan towards which an affordability credit is applied; or
(b) other nonfederal funds required to receive a federal payment, including State's or locality's contribution of Medicaid matching funds.

(c) OPTION TO OFFER SUPPLEMENTAL COVERAGE OR PLAN -
Notwithstanding section 303(b), nothing in this section shall restrict any nonfederal QHBP offering entity from offering separat supplementa coverage for abortions for which funding is prohibited under this section, or a plan that includes such abortions, so long as-
(1) premiums for such separate supplemental coverage or plan are paid for entirele with funds not authorized or appropriated by this Act;
(2) administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage or plan; and
(3) any nonfederal QHBP offering entity that offers an Exchange-participating health benefits plan that includes coverage for abortions for which funding is prohibited under this section also offers an Exchange-participating health benefits plan that is identical in every respect except that it does not cover abortions for which funding is prohibited under this section.

http://documents.nytimes.com/the-stupak-amendment

(a) IN GENERAL -
No funds authorized or appropriated by the Act (or amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unleass an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

SUMMARY OF AMENDMENT IN PART C TO BE MADE IN ORDER - TEXT OF THE AMENDMENT
Stupak (MI), Ellsworth (IN), Pitts (PA), Smith, Christopher (NJ), Kaptur (OH), Dahlkemper (PA)

The amendment codifies the Hyde Amendment in H.R. 3962. The amendment will prohibit federal funds for abortion services in the public option. It also prohibits individuals who receive affordability credits from purchasing a plan that provides elective abortions. However, it allows individuals, both who receive affordability credits and who do not, to separately purchase with their own funds plans that cover elective abortions. It also clarifies that private plans may still offer elective abortions. (20 minutes)

LINK

There's been a lot of debate around here about what that exactly means. Here's what it means. Millions of women will not have access to a legal medical procedure. Remember that, the legal part?

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government "affordability credits." As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

Once again, just like in the pre-Roe days, the wealthy will have access to abortion, those who can't scrape several hundred dollars together won't. Because of how the exchange is structured, most of people covered through it will be receiving credits or subsidies. Therefore, most of the participants will not have access to a legal medical procedure. Additionally, the reality, as Arons says, is that the insurers participating in the exchange won't offer it at all, and the question remains whether they'll continue to offer it for women in employer-based programs outside the exchange, or whether it would just be easier for administrative and overhead purposes to stop covering it at all. Right now, nearly 90 percent of private, employer-based plans cover abortion services. This legislation could result in many of those plans dropping it, to make administration of plans simpler and more cost-effective. We know how critical the bottom line is to them.

And take another look at those exclusions: "where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion." Even planned pregnancies are regularly terminated--legally--because of the health of the mother or severe fetal abnormalities. Forcing women to carry these pregnancies to term is dangerous and cruel. Forcing low- and moderate-income women to have to make hard financial decisions to try to come up with the money for the procedure is cruel. It's also diametrically opposed to the very principles of healthcare reform. This legislation is supposed to be freeing Americans from having to make horrible financial choices between basic necessities and medical care.


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This is the most expansive restriction on access to abortion Congress has passed. It goes well beyond Hyde, which has never been codified and which only governs federal, public plans. It's particularly galling that it comes under the umbrella of healthcare "reform."

Remember the promises? Reform was about expanding choices, not allowing government to come between you and your doctor, no one will lose their coverage, and if you like your current plan you get to keep it. Apparently being female is a preexisting condition that exempts us from the promises, too.