The Ellsworth Amendment: Dems Set to Compromise on Abortion Care in Health Reform, Again

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The Ellsworth Amendment: Dems Set to Compromise on Abortion Care in Health Reform, Again

Jodi Jacobson

A vote originally set for tomorrow on the House health care bill may be delayed until next week, even after months of drama to arrive at this point. And to get to yes, Democrats are set to make another compromise on abortion care.

A correction was made to this article at 3:28 pm on Saturday, November 7th.  The article originally stated the Congresswoman Lois Capps was working with Congressman Ellsworth to find compromise language on federal funding and abortion issues.  This was not correct; Congressman Ellsworth worked with the House Majority Leadership on that language.

A vote originally set for tomorrow on the House health care bill (HR 3200) may be delayed until next week, even after months of drama to arrive at this point.  And to get to yes, Democrats are set to make another compromise on abortion care.

If there is one thing this process has revealed it is that there is no real way to find common ground on women’s sexual and reproductive health and rights with today’s Republican party, or with the majority of the so-called Democrats for Life, who for all intents and purposes under the leadership of Michigan Congressman Bart Stupak are currently acting as the legislative arm of the United States Conference of Catholic Bishops. These folks don’t even support access to contraception for the purpose of reducing unintended pregnancies, never mind abortion even to save the life of the mother, so "compromise" on an issue of such profound implications for women is an idealized concept to say the least.

And in fact passage of the current bill remains in question in part because of demands by Stupak and anti-choice forces for language that would completely eliminate coverage of abortion care even in private insurance plans

Roe has collapsed in Texas, and that's just the beginning.

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As noted here before, a Guttmacher Institute study has found that 87 percent of typical employer-based insurance policies cover abortion care. So under Stupak’s proposed amendment to the bill, women would actually lose coverage under health reform.  It seems Minority Leader John Boehner had it partly right when he talked about health reform as a threat to freedom, but he was confused because it is the anti-choice amendments to this bill that threaten the freedom of women to choose private insurance plans that meet their needs.

These problems were supposed to be avoided by the first compromise, known as the Capps Amendment (see "The Truth About the Capps Amendment") which was included in the House Energy and Commerce bill this summer and has been incorporated into the final House bill.  Authored by Congresswoman Lois Capps (D-CA), a strong pro-choice and women’s rights advocate, the amendment was intended to create an "abortion neutral" platform and pass a good health reform bill as expeditiously as possible.

In other words, with this amendment, abortion was supposed to be off the table as a lightening rod for efforts to upend the reform process.  The pro-choice side (read: the women of the United
States) would not gain any additional provisions expanding coverage for
abortion care under health reform.  And the anti-choice side (read:
largely male, largely ultra-conservative, largely Catholic) would not have to
suffer either expansion of abortion coverage or any loosening of
current restrictions on federal funding of abortion embodied in the
Hyde Amendment.

The key elements of the Capps Amendment are that it:

  • Clarifies that the government could not mandate
    nor prohibit coverage for abortion services for plans in the insurance exchange.

  • Ensures that patients will have access to at least one plan that does cover
    abortions services and one that does not, thereby providing more choices to those who are pro-life since as per above most
    private health insurance plans cover abortion services regardless of whether or
    not enrollee wants it.

  • Also expands the “Conscience Clauses” (i.e., permission for providers to refuse to provide abortions),
    including the one known as the Weldon Amendment), which is in fact expanded under Capps.

  • Clarifies that public funding may not be used to pay for abortion
    services.  Under Capps, private funds (generated by patient premiums) can still be used to
    pay for these services.  These private funds must be kept strictly
    segregated from any federal funds.

  • Does not interfere with the Hyde Amendment (which
    says no Federal funds can be used to pay for abortions except in the case of
    rape, incest, or life of the woman).


The Capps amendment also does not interfere with or preempt any state laws
regarding abortion (i.e. laws regarding parental notification, waiting periods, and so on.)

To call this a compromise or "abortion neutral" is generous, since even given the best intentions of Congresswoman Capps and her desire to move the process forward, the amendment bends over backwards to appease anti-choice groups by expanding conscience clauses that are already more than sufficient and that many consider unethical on their face, and by taking off the table any discussion of expanded abortion coverage for poor women specifically.

But this is about politics, and the Democrats need to pass health reform, so I digress.

The problem?  It turns out not everyone is down with the Capps amendment nor the abortion neutral position, however, least of which are the Catholic Bishops and the conservative Republi-crats hiding out in the Democratic party.  Stupak, for example, is not satisifed with segregating federal funding from private premiums for abortion within insurance plans.  So he and others in his caucus have promised to withold votes unless they get their way and unless they are assured a vote on his amendment during debate on the bill.

Pro-choice groups are of course rallying hard to defeat Stupak’s proposal (see Planned Parenthood’s action page here), and off-the-record conversations with several Hill staffers indicated that his amendment is a "deal-breaker" for many members in any case. 

But the stakes are very high, things can change quickly, the infighting leaves the leadership short on ayes in the 11th hour, the pressure is on the Obama Administration to deliver and there already is talk of the vote being delayed.  Given these realities, the underside of that bus so familiar to women when politics collides with reproductive rights appears to be lurking ominously around the corner.  Still, House leaders are furiously counting votes, and are also working on yet another compromise on abortion in an effort to secure enough votes to pass the bill.

The new compromise language under consideration is an amendment by Congressman Brad Ellsworth, a pro-life Democrat from Illinois with a zero rating on votes from Planned Parenthood.  As of this writing the final language was still a work in progress, and negotiations were underway between Congressman Ellsworth’s office and House Leadership.  However, a memo from the Congressional Research Service and analyses by both Hill staffers and advocacy groups suggests that if passed as currently written in draft, the Ellsworth proposal would essentially do the following:

  • Ensure no federal funds can ever be used in the Health Insurance Exchange proposed in the House bill: The Capps Amendment states that no federal subsidies to individuals in the form of Affordability Credits can be used to pay for abortion coverage. According to a memo drafted by Third Way, "the Ellsworth Amendment expands this ban to apply to any and all ‘other federal funds’ that do now or may in the future fund the Exchange. This means that any additional federal dollars, even those beyond “Affordability Credits,” that may be designated to fund the exchange (i.e. as part of a future stimulus package) will now not be able to fund abortions."

  • Make the Hyde Amendment permanent in the "pro-life" plans in the Exchange:  Under the Capps Amendment, at least one plan in the Exchange must be available that covers abortion services only in Hyde Amendment exceptions (in cases of rape, incest or life endangerment). Managers of this plan can, in fact, choose not to even cover Hyde-approved abortions.  The Ellsworth Amendment ensures that even if the Hyde Amendment is not renewed or is changed, at least one plan in the Exchange will still meet the Hyde Amendment standards by providing abortion only in cases of rape, incest or life endangerment, while still making it clear that this plan need not cover abortions at all.

  • Ensure there is no discrimination against health insurance plans that do not provide abortion.  The Capps Amendment specifically bans abortion coverage from inclusion in the minimum essential benefits package for insurance plans whether in or out of the Exchange. Ellsworth tightens this provision by ensuring that plans that do not cover abortion are not penalized in any way by the the commissioner who administers the day-to-day workings of the Exchange. It also bans discrimination against pro-life plans wanting to get into the exchange after the first required pro-life plan has filled that “slot."

  • Require the Secretary of Health and Human Services to hire a private contractor for handling funds that can be allocated out of private premiums for insurance coverage of abortion and strengthens the means through which those funds remain segregated.

Reaction to the Ellsworth Amendment has been mixed.  Laurie Rubiner, Vice President for Public Policy for Planned Parenthood stated that:

Planned Parenthood is concerned about Representative Brad Ellsworth’s proposed legislative language on abortion care in health care reform. Representative Ellsworth has a zero percent rating from the Planned Parenthood Action Fund and has never been a supporter of women’s health and rights.   

Representative Ellsworth’s language purportedly seeks to amend a carefully-crafted and balanced compromise that should have put this issue to rest months ago. The Capps compromise assures that access to abortion care is neither mandated nor prohibited and that women will not lose the health care benefits they have had for decades.  It also stipulates that no federal funds can be used for abortion care. We are concerned that this new language could tip the balance away from women’s access to reproductive health care.

Others agree that the Amendment "tips the balance" though some claim only slightly so.  Third Way’s analysis of Ellsworth’s Amendment states:

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. Our close read of the language offered by pro-life Rep. Brad Ellsworth finds that his proposed amendment moves the bill in a pro-life direction but still achieves the goal of abortion neutrality.

Others have said that this proposal provides a way to "bold and underscore" the segregation and non-use of federal funds for abortion care, while allowing individuals to exercise their rights to this legal procedure under private plans with their money paying the premiums.

The stricter segregation of funds, the creation and protection of plans that do not provide abortion, and the other legal assurances created by the Ellsworth Amendment still don’t mollify the far-out right.  National Right to Life committee has called it a "political fig leaf made of cellophane" and the conservative OneNewsNow calls it a "sham."  As noted above, Stupak and the Bishops remain unimpressed.

It’s up to women’s rights groups and women throughout this country to take action now, because the anti-choice movement is in the halls of Congress, literally.  And one thing is clear: The only way to mollify this contingent is to strip half the US population of its fundamental rights.  Any more "compromise" and that’s where we will be.