Reconsidering Ellsworth

The Stupak Amendment is not abortion neutral and disrupts the delicate federal balance already in place. The Ellsworth Amendment, which was rejected in the House in favor of Stupak, is much closer to common ground.

Supporters of health care reform have been determined not to let the delicate issue of abortion trip up comprehensive legislation. The key to that effort has been to seek the goal of “abortion neutrality,” which means that the legality, cost, and availability of abortion, as well as the federal role in abortion, is no greater or no less than if there were no bill.


The Stupak-Pitts Amendment, which was included in the final version of the House bill, is not abortion neutral, and it would disrupt the delicate federal balance already in place. By upsetting this balance, health care reform is now in jeopardy. The pro-life Ellsworth Amendment, which was rejected in the House in favor of the Stupak Amendment, offers a far better approach that adheres to common ground.

Rep. Ellsworth’s amendment builds off of an earlier good faith attempt offered by pro- choice Rep. Lois Capps that was included in the Energy and Commerce Committee’s draft bill. The Ellsworth Amendment would have moved the bill in a pro-life direction, but it still would have achieved abortion neutrality. Rep. Ellsworth has a 100% score with National Right to Life and Rep. Capps has a 100% NARAL rating. Each deserve to be commended for trying to strike this delicate balance.


Below is an analysis of how the Stupak-Pitts amendment fails to achieve ‘abortion neutrality’ as well as the common ground potential of the Ellsworth amendment.

The Stupak-Pitts Amendment Violates Abortion Neutrality in Three Ways

1. The Stupak-Pitts Amendment changes a decades-long balance of existing federal law on abortion coverage.

The Hyde Amendment, which has been on the books for over 30 years, prevents federal funds from being used to pay for abortion in the Medicaid program, except for cases of life endangerment, rape or incest. The Stupak-Pitts Amendment goes much further, by preventing even private premiums from being used to pay for abortion in the Exchange. The Stupak-Pitts Amendment prohibits health insurance plans in the Exchange that receive any federal funding from covering abortion, even with segregated private funds. Because all Exchange plans will likely receive federal tax dollars through subsidies to individuals, individuals will not be able to purchase health insurance that covers abortion, even with their own premiums. The fact that the millions of Americans participating in the Exchange will not have abortion coverage is also a dramatic change from the status quo, since the majority of Americans with health insurance have plans that include abortion coverage

The logic of the Stupak-Pitts Amendment also rejects the current non-controversial scheme whereby year after year, hundreds of billions of dollars are consistently used to subsidize health insurance policies that cover abortion. Until the Stupak-Pitts Amendment emerged, none of this funding was deemed controversial in any way by pro-life stalwarts from President Ronald Reagan to President George W. Bush.

The employer deductibility of health coverage has yielded trillions of dollars in federal tax subsidies for insurance plans, whether or not they covered abortion. Flexible Savings Accounts (which started in 1978 and grew in popularity under President Reagan) allow for individuals to deduct the direct cost of abortions from their taxable income. Health Savings Accounts (which started under President Bush) allow for tax-favored savings to be used to pay for abortions.

Each of these tax subsidies has, at one time or another, received the support of nearly all members of Congress—whether ardently and unequivocally pro-life or pro-choice. Yet as far as we can tell there has never even been a debate about whether these subsidies could cover plans that offer abortion coverage, even though most do.

2. The Stupak-Pitts Amendment changes longstanding policies regarding the segregation of funds.

Supporters of the Stupak-Pitts Amendment dismiss efforts at finding a compromise on abortion in health care reform through the segregation of funds as an “accounting trick.” Whether or not one believes this argument, supporters of the Stupak-Pitts Amendment must now reconcile this view with longstanding policies that allow the segregation of funds in order to let religious organizations accept federal money.

The reasoning of the Stupak-Pitts Amendment would call into question countless activities by religious organizations that rely on federal funds, including Head Start, homelessness relief, food banks, substance abuse counseling, prison fellowship, afterschool programs for troubled youths, adoption services, ESL programs for immigrants, and veterans’ services.[ii] Of course, in the context of abortion, the segregation of funds is also accepted in Medicaid, where 17 states supplement the federal program with abortion coverage.

3. The Stupak-Pitts Amendment means no plans in the Exchange would offer abortion coverage.

Even though there is a provision in the Stupak-Pitts Amendment that would allow the purchase of separate supplemental coverage of abortion, it is implausible that insurance companies would offer this coverage. Unintended pregnancies are unplanned by definition, so demand would likely be low. And unlike other medical procedures, abortions are relatively inexpensive. That is why in the five states where abortion coverage is prohibited except through such “riders,” there are only isolated examples of insurers actually offering such coverage, and even then only as part of a small group package, rather than to individuals.

The Ellsworth Amendment: A Common Ground Solution

Representative Brad Ellsworth, who has a 100% rating with National Right to Life, has drafted a compromise solution, which built off of an earlier plan from (100% pro-choice) Representative Lois Capps. Unlike the Stupak-Pitts Amendment, the Ellsworth Amendment meets the test of abortion neutrality.

The Ellsworth Amendment strengthens the pre-existing protections against federal funding for abortion in the House bill by:

  • Ensuring that no future federal dollars can ever be designated to fund abortions in the Exchange;

  • Making permanent strict Hyde limitations on the pro-life plans in the Exchange;

  • Increasing protections for pro-life insurance plans by adding a non-discrimination requirement; and,

  • Strengthening the guarantee of segregation of funds by requiring compliance with three separate standards of accounting.

The Ellsworth Amendment was not endorsed by any of the major pro-life or pro-choice groups. That’s probably the best indication that it achieves common ground.


For more information about the Ellsworth Amendment, see our memo Achieving Abortion Neutrality in Health Care Reform.