Congressional Republicans punted into early 2018 what could have been a dramatic year-end government shutdown over an abortion crisis of their own making: whether to add the Hyde Amendment to a bipartisan U.S. Senate plan temporarily stabilizing the Affordable Care Act (ACA), or Obamacare.
As the longstanding appropriations ban on federal funding for abortion except in rare circumstances, implemented annually since 1976, the Hyde Amendment already applies to Obamacare’s embattled cost-sharing reductions (CSRs) that reduce the price of insurance for people with low incomes. Even Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Lamar Alexander (R-TN), who opposes abortion, doesn’t think his bill needs to spell out the Hyde Amendment because of who’s in the White House.
“This is only a two-year law so [President] Trump-[Vice President Mike] Pence will be there the entire time of the existence of this law, which I would think would cause pro-life groups—and I have a 100 percent pro-life rating—to be comfortable with it,” Alexander told Politico’s Pulse health-care policy newsletter.
Anti-choice groups disagreed. The Susan B. Anthony (SBA) List falsely claimed in a press release that a vote for Alexander’s bill, which he co-wrote with the HELP Committee’s top Democrat, reproductive rights champion Sen. Patty Murray (WA), “is a vote for taxpayer-funded abortion.” SBA List on Tuesday led a coalition of 67 anti-choice groups in warning members of Congress that they would oppose not only the underlying bill, but also “any larger legislative package that includes stabilization funds for abortion-covering plans.”
Roe is gone. The chaos is just beginning.
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Should the Hyde-esque provisions not be added to the Senate’s Alexander-Murray bill, a number of influential Republicans in the U.S. House of Representatives threatened to withhold support from a must-pass continuing resolution to keep the government funded and running beyond December 22—this coming Friday. They raised objections during a Tuesday morning meeting of the House GOP conference, according to The Hill, and House Speaker Paul Ryan (R-WI) backed them up. By Wednesday, House and Senate Republican leaders, facing opposition from multiple constituencies within their conferences, decided to pursue a straight continuing resolution with no extraneous provisions.
The dissenting Republicans, in all likelihood, want more than a simple reiteration of existing Hyde policy, perhaps best known for barring Medicaid beneficiaries from obtaining abortion services through their government-run health care. House Republicans could insist on cutting off CSR payments to any and all health-care plans that cover abortion, even if those plans are in the private insurance market. The fact that CSRs can’t and don’t fund abortion itself, in accordance with federal law, doesn’t square with the GOP myth that taxpayer money is fungible. Republicans have long used that myth to attack Planned Parenthood, and now they could wield it to create a chilling effect that leads private insurers to drop abortion coverage.
House and Senate Republicans tried to finagle a comparable outcome earlier this year. They sought to end abortion coverage in any health insurance plan, public or private, through their ultimately doomed Obamacare repeal bills. The House-passed bill, for instance, delivered a one-two punch, ending CSRs and prohibiting federal tax credits from insurance plans that cover abortion, according to a Kaiser Family Foundation brief. But the restrictions, along with a provision to defund Planned Parenthood, violated Senate rules and couldn’t have proceeded as was even if the repeal bills had been successful.
Such precedent doesn’t bode well, according to a reproductive rights advocate based in Washington, D.C. “If past is prologue, we know that’s going to be really bad,” the advocate said. “They’re going to go for the worst thing.”
A different reproductive rights advocate elaborated on the consequences of denying CSR payments to insurers that cover abortion: “Insurers will have to decide to include abortion coverage or forgo billions of dollars,” the second advocate said. “So, it would basically coerce insurance plans to drop private coverage of abortion.”
House Pro-Choice Caucus Co-Chairs Reps. Diana DeGette (CO) and Louise Slaughter (NY), both Democrats, expressed similar concerns.
“This Republican-produced instability has created a dire need for CSR funding among health insurers,” they said in a joint statement on Wednesday. “By attaching abortion-coverage restrictions to CSR funds, dramatic declines in abortion coverage are likely to occur across the country, denying many women access to safe and affordable care.”
Without CSRs, Vox‘s Dylan Scott explained, people with low incomes will still qualify for Obamacare’s financial assistance. “The most immediate questions will be: Can insurers hike their rates even more to account for the loss of CSR payments, or can they drop out of the Obamacare markets entirely?” he wrote.
Alexander and Murray in mid-October thus struck a bipartisan deal to continue the payments and provide certainty for insurance companies. Their plan followed Trump’s decision to stop CSR payments in keeping with the administration’s regulatory and executive actions to undermine Obamacare in the absence of a legislative repeal. (In a twist, the White House now reportedly supports the legislative fix for CSRs.)
Then came the GOP’s regressive tax overhaul, currently en route to Trump for his signature into law. The tax bill repeals Obamacare’s individual mandate, the foundational requirement for people to purchase health insurance or face a penalty, despite the nonpartisan Congressional Budget Office’s estimate that the move will drive 13 million more people off insurance over the next decade. Sen. Susan Collins, a more moderate Maine Republican who helped sink her party’s Obamacare repeal efforts, agreed to vote for the tax bill if Senate Majority Leader Mitch McConnell (R-KY) promised to pass the restoration of CSRs, among other demands.
Collins’ vote doesn’t represent a fair trade, according to Democrats.
“The Alexander-Murray bill was never designed to fix the problem that [Republicans are] creating with this tax bill,” Murray told reporters on Tuesday following Senate Democrats’ weekly policy lunches.
Now, Republicans want to add a measure curtailing reproductive rights to an already ineffective health-care fix.
Democrats aren’t having it.
“A good faith effort would not be laying down a marker that it must have the Hyde Amendment in it,” Senate Minority Leader Chuck Schumer (D-NY) said during the same Tuesday press conference. “That’ll kill it altogether.”
As Republicans increasingly realized that extraneous provisions would doom the continuing resolution, Alexander and Collins issued a joint statement on Wednesday announcing that they had asked McConnell to refrain from including the CSR plan in the continuing resolution.
“It has become clear that Congress will only be able to pass another short-term extension [of government funding] to prevent a government shutdown and to continue a few essential programs,” Alexander and Collins wrote. Their assessment was correct; Republicans have dropped full fiscal year 2018 defense spending, a GOP favorite, from the continuing resolution.
But Alexander and Collins are just punting the CSR issue to the new year. Congress must pass a continuing resolution by Friday in order to avert a government shutdown. The version under consideration would keep the government running through January 19, at which time Congress will either have to fund the government through another short-term continuing resolution or an omnibus spending package to fund the government through the September 30 end of the current fiscal year.
Two spokespeople for Collins did not respond to Rewire’s emails requesting the senator’s position on the abortion restrictions. Collins has a mixed record on reproductive rights.
Collins’ GOP colleagues haven’t shied away from government funding fights over reproductive rights in recent years. But the underlying CSR bill could be moot, given opposition within the House GOP conference to the subsidies. Rep. Mark Walker (R-NC), chair of the conservative Republican Study Committee, views CSRs as insurer bailouts.
Democrats’ and reproductive rights advocates’ words of caution still stand, given the stakes and the potential for another shutdown in January.
“It is unconscionable that Republicans are holding both government funding and health insurance markets hostage in their quest to deny women access to abortion,” DeGette, the House Pro-Choice Caucus co-chair, said in Tuesday’s statement. “Every woman should be able to make personal decisions about reproductive health care with dignity and respect, and without interference from politicians.”