The Nelson “Compromise:” What It Will Cost Us

By catering to Nelson, the Bishops, and fundamentalists, the Senate aided the anti-choice forces in achieving one of their primary goals: further stigmatizing reproductive and sexual health care, and making it harder for women to get.

The weeks-long soap opera of finding 60 votes for the Senate health reform bill came to an end yesterday when Democrats "compromised" with Senator Ben Nelson (D-NE) on language regarding abortion coverage.  After catering first to Senator Joe Lieberman, (Ind-CT), by removing both the public option and the Medicaid buy-in, Majority Leader Harry Reid (D-NV) then introduced a manager’s amendment that includes new language on abortion care–and a huge barrel of pork for Nebraska–in an effort to bring Nelson on board and get the 60 votes needed to end a Republican filibuster.

In doing so, the Senate aided the anti-choice community in achieving one of its primary goals: further stigmatizing reproductive and sexual health care, including but not limited to abortion, and making such care ever-harder for women to secure. This is and was unquestionably a major goal of Nelson’s hold-out strategy.  Nelson has consistently voted against expanded contraceptive services, voting no, for example, in 2005 on a program to invest $100 million to reduce teen pregnancy through increased access to sexual and reproductive health education and contraceptive services.  Over the past month, he has several times made a point of "waiting for the approval" of the U.S. Conference of Catholic Bishops and anti-choice organizations on language for the Senate bill.

Meanwhile, the drama over Lieberman and Nelson also aided the Republicans in one of their primary goals: first to kill, and barring that, to severely weaken any attempt to reform health care in this country.

What does the "Nelson" language say?

Pro-choice advocates are still examining the implications of the Nelson language.  But conversations with several analysts over the past 24 hours suggest that if passed into law in the final health care bill, this langauge, at a minimum, does the following:

  • Requires every enrollee–female or male–in a health plan that offers abortion coverage to write two separate checks for insurance coverage.  One of these checks would go to pay the bulk of their premium, the other would go to pay the share of that premium that would ostensibly cover abortion care.  Such a check would have to be written separately whether the share of the premium allocated for abortion care is .25 cents, $1.00, or $3.00 of the total premium on a monthly, semi-annual or annual basis.  Employers that deduct employee contributions to health care plans from paychecks will also have to do two separate payments to the same company, again no matter how small the payment.

  • Eliminates the provision in earlier versions of the Senate bill and in the original Capps language in the House bill to ensure that there is at least one insurance plan in each exchange that offers and one that does not offer abortion coverage. 

  • Prohibits insurance companies by law from taking into account cost savings when estimating the costs of abortion care and therefore the costs of premiums for abortion care.

  • Includes "conscience clause" language that protects only individuals or entities that refuse to provide, pay for, provide coverage for, or refer for abortion, removing earlier language that provided balanced non-discrimination language for those who provide a full range of choices to women in need. 


What are the implications of the Nelson deal?

  • "Separate checks, please:" 


Analysts note that requiring enrollees to pay separately for their "base premium" and their "abortion care" premium will have several negative effects, some very similar to or the same as the Stupak Amendment.

First, the separate checks/separate payments policy will have the same effect as would so-called abortion riders that, under Stupak, would in theory require women to purchase a single-service abortion policy separate from their health insurance package.  Under the Nelson scenario, health plans are required to deposit the payments into two separate accounts — one for the abortion payments and one for everything else, presumably as a way of ensuring only private funds are used for abortion care.

But, notes Planned Parenthood:

forcing individuals to write two separate checks (both of which are  out of private funds) and requiring health plans to administer two different payments
of private funds is not necessary to insure public funds are not used
for abortion care.

"There is no policy justification for forcing individuals to write two
separate checks from their private bank accounts," notes one analyst.  "Health plans themselves can easily establish a firewall separating public funds from private funds and ensure that only private funds are used for abortion care. This provision only serves to stigmatize a woman’s right to comprehensive insurance coverage that includes abortion."

Moreover, as with the Stupak Amendment, over time the Nelson language will likely cause a major shift in coverage of abortion care.  Today, more than 85 percent of women with private insurance are enrolled in plans that cover abortion care.  As noted here before, insurance companies are nothing if not profit maximizers.  With increasingly onerous accounting and reporting requirements placed on abortion care, both insurance companies and employers seeking to dramatically limit the costs of insurance coverage are likely to stop offering coverage for abortion care altogether.

In other words, the Nelson language will likely have the same outcomes suggested by the George Washington University Study on which we reported in detail some weeks back, including:

  • moving the industry away from current
    norms of coverage for medically indicated abortions.

  • inhibiting development of a supplemental coverage market for medically indicated abortions.

  • "Spillover" effects as a result of administration of
    Stupak/Pitts will result in dramatically reduced coverage for
    potentially catastrophic conditions.

Again it is important to note there is no policy justification whatsoever for the separation of "check and state" because these are private funds. Instead this provision is a means of making it harder for millions of women to make a legal, moral choice about their lives, their families and their health care.


  • "Not in My State"


State legislatures currently have the right to prohibit insurance companies from covering abortion care in either public or private employee health plans, and 17 states do so, including Arkansas, Colorado, Idaho, Illinois, Kentucky, Massachusetts, Missouri, Nebraska, Ohio, Oklahoma, Pennsylvania, Virginia and Wisconsin.

At first glance, it appears as though the Nelson language simply reiterates current policy.  But the fact is that the ultimate shape of health reform legislation will change that in numerous ways.

Under lanuage in the original Capps Amendment in the House and in the original Senate bill introduced by Reid, millions of women who have coverage for abortion care would have kept that coverage, and millions of others currently without coverage might well have freely chosen plans that covered abortion care, because the requirement for balancing "pro-choice" and "no-abortion-coverage" plans in the exchanges would have allowed individuals to make their own decisions about enrolling in a plan that did or did not cover such care.  This would actually have been a gain for those who did not want plans that cover abortion care, because today, most plans do, and most people pay into plans that cover such care whether they want to or not. 

Now, however, the combination of onerous requirements and separate checks, the number of anti-choice legislatures at the state level, the removal of the public option (which would have driven down costs overall), and the removal of requirements that at least one plan in each exchange provide abortion coverage imply that millions fewer women will have coverage for abortion care than do now.  And…women’s rights will increasingly be decided on a state-by-state basis.  The mounting economic pressure on the system to drop what will now be burdensome requirements for abortion care will increase as the trend away from employer-paid health plans increases and as individuals will now be mandated to purchase insurance coverage.

  • Legislating Market Farces


There is a simple economic fact about abortion care.  In the case where a woman has decided not to carry a pregnancy to term, it is cheaper to provide her with abortion coverage than to force her to carry to term for lack of safe options or affordable abortion care and to therefore pay for pre- and post-natal care, labor and delivery care, and general maternity care, never mind potential complications.  (We will put aside for the moment the fact that many plans do not provide maternity care coverage at all).

To reiterate: It is cheaper to provide a woman who knows she does not want to carry a pregnancy to term and chooses abortion with access to an early abortion than it is to force her to carry to term for lack of safe alternatives.  This has nothing to do with encouraging women not to carry wanted pregnancies to term on the basis of cost.

It is also unquestionably cheaper to provide coverage for abortion care for women facing catastrophic fetal anomalies or threats to their life or health than it is to deal with the aftermath of complications from such pregnancies left unaddressed.

The Nelson language, however, legislates a "market farce," by prohibiting insurance companies from calculating or taking into account when deciding on the level of premiums needed the cost savings from abortion care as against maternity care.  

As one expert put it:

This is a tax on women and a fraud perpetrated on the country.  By
ignoring the cost-savings, it unfairly presents abortion coverage as
far more expensive than it actually is.  This is no different than
focusing on the harms caused by cutting someone with a scalpel while
ignoring any benefits from surgery.

There’s a reason why 87% of private plans offer abortion coverage. 
It makes little sense to deny this coverage to women who want to
terminate a pregnancy – after all, the costs of prenatal care and
childbirth are far higher in almost every case. [But under the Nelson language], insurers can only take into account costs but not
savings, which means that the fee for the rider will be artificially
high  [and] of course the insurance companies will keep the windfall.

[The cost issue] is not why I
support reproductive rights
but that’s just how it is.  Pro-lifers don’t like the fact that a
market-based solution, so intrinsic to many of their other arguments,
does not lead to the outcome they want, so they lie about the numbers.  And it is so typical of pro-life arguments; a pathological need to hide the
truth from people and use fake numbers to make their point.  There is
absolutely no justification for not including cost savings in the
calculation except that the reality of the situation is unsavory to

Under the Nelson language, then:

Women now get a Hobson’s choice.  They can live in a state that
completely opts out of coverage, meaning that coverage will essentially
be totally unavailable.  Or they can live a state that provides some
limited coverage, but only if they pay an inflated and unreal price
through additional bureaucratic coverage.  The manager’s amendment is a
double barrier in the way of women’s access to healthcare.

  • "My conscience is more important than your conscience:"


Anti-choice forces, and even the media and some self-identified pro-choice representatives are fond of talking about the "moral dimensions" of abortion, in this case implying there is only "one right" moral dimension, and further implying that abortion is a bad or shameful thing.

However, ethicists, people of faith, and normal everyday citizens understand completely that there are vastly different opinions within different faith traditions and among individuals on the justifications of choosing to terminate a pregnancy, and that choosing abortion can be and is a good "moral choice" for many women, their partners and their families when their own circumstances dictate.

But in adopting the Nelson language, the Senate would be deciding that there is only "one" right moral choice. Indeed it is Ben Nelson’s own "moral choice" being imposed on women in the United States.  Given that Nelson, one Senator who represents a state with a mere 0.62 percent of the entire U.S. population, won such a sweeping concession suggests that he believes–and the Senate leadership was willing to concur–that his own moral principals and views take precedence over those of the roughly 152 million females in the United States, a third of whom have had or according to current patterns will have an abortion in their lifetime.

In fact, the original language in the Senate bill respected all viewpoints on abortion, notes the Center for Reproductive Rights, whereas the Nelson language promotes discrimination based
on viewpoint,
by protecting:

individuals and health care facilities
against discrimination if they oppose abortion, leaving unprotected and
vulnerable those who believe with
equal fervor that women should have access to comprehensive reproductive health care, including
abortion. This lopsided protection is inconsistent with the concepts of balance
and fairness

This language also puts anti-choice ideology ahead of health.

"Women should be able to access the health care they need," states CRR,"and health care providers should not be discriminated against for providing it."

But the language now in the Manager’s Amendment does just that, allowing discrimination against those who would provide abortion services, jeopardizing women’s access to essential health care services.

As with the Stupak Amendment, these changes are a far cry from the abortion-neutral health reform strategy on which anti-choice groups–most notably the USCCB–ostensibly agreed earlier this year.

In fact, the question remains whether sexual and reproductive health care is the only issue here.  Over 80 percent of those who voted for the Stupak Amendment voted against the health reform bill in the House in any case. So we gave up the veritable ship and got absolutely nothing in return.

The constant carrying of the Republican, ultra-conservative, religious fundamentalist agenda in the Senate first by Lieberman and immediately thereafter by Nelson, the ping-ponging of their "yes, I’m in, no I’m out," changes of heart (can we call them "fickle?"), the fact that the Bishops and Stupak immediately jumped to denounce the Nelson language for reasons that remain less than clear and the fact that the Bishops seem just fine thank you with lack of movement on their other "core" issues in health reform all suggest there is no hunger among these groups for health reform per se.  By accommodating these regressive forces, we have once more thrown women under the bus for the purpose of an agenda that does not reflect health, human rights, nor even the stated desire of the majority of the American population, but rather a small handful of white men.