By Alec MacGillis
Washington Post Staff Writer
Tuesday, December 22, 2009; A08
The abortion language that was added to the Senate's health-care bill to win the vote of Sen. Ben Nelson (D-Neb.) has achieved a rare feat: It is drawing contempt from both sides.
That could be taken as a sign that senators finally found an elusive compromise on a thorny issue. But serious questions are already being raised about how the new language would work in practice and whether it would even be feasible to implement.
"This is why it's being attacked by both sides -- not because it's so moderate but because it's crazy," said Richard Doerflinger, a spokesman for the U.S. Conference of Catholic Bishops.
Sara Rosenbaum, a George Washington University professor of public health and law who criticizes the language as too restrictive, echoes that conclusion: "None of how this is supposed to work is even remotely in the bill, so I don't know what people are thinking about it."
The long-standing ban on federal funding for abortion has complicated congressional Democrats' health-care legislation. Medicaid bars federal funding for abortion, but 17 states and the District allow the procedure for female Medicaid enrollees paid out of their own funds. It is harder to reach middle ground in the bill before Congress, which would provide federal subsidies to millions of people to buy private health insurance plans on a new marketplace, or "exchange." The deal reached by Nelson and other Democrats over the weekend would allow those people to purchase insurance plans with abortion coverage. But they would have to write two separate premium checks -- one to cover the bulk of their plan and the other to cover the sliver for abortion coverage, probably a dollar or so per month.
States could also decree that no plans including abortion coverage be provided on the exchange in their state. As it stands, five states already have some sort of ban on abortion coverage.
By contrast, an amendment that passed the House would prohibit insurers from selling plans with abortion coverage to anyone buying coverage with the help of subsidies -- excluding 85 percent of customers on the exchange. The amendment, sponsored by Reps. Bart Stupak (D-Mich.) and Joe Pitts (R-Pa.), would permit the sale of "riders" for abortion coverage, but abortion rights groups say it is offensive to expect women to buy separate coverage for a procedure that most do not plan on needing.
Neither the House language nor the Senate language would affect women who have employer-provided plans, many of which cover abortion. But it is expected that more people would go into the exchange over time for coverage, broadening the impact of its rules.
An amendment by Nelson that mirrored the Stupak-Pitts language failed in the Senate. Senators supporting the new language say it is preferable to Stupak-Pitts because it would allow all women, subsidized or not, to buy plans with abortion coverage, assuming their state allows it.
"Is this the language we wanted? No. But it stopped Stupak and kept health reform moving forward without rolling back women's health-care options," said Alex Glass, a spokeswoman for Sen. Patty Murray (D-Wash.).
Others outside the Senate, though, say the language could limit abortion coverage as much as Stupak-Pitts. Anyone who selects a plan that includes abortion coverage would have to pay two separate premiums -- even single men or older women, who would not need abortion coverage. Abortion rights supporters suggest that would prompt frustration and, in turn, reduce demand for such plans. Eventually, they argue, insurers may decide not to offer abortion coverage at all.
"The absurdity of requiring these two separate checks doesn't accomplish anything toward the supposed goal of segregating federal funds," said Cecile Richards, president of the Planned Parenthood Federation of America. "It just creates additional hoops for insurance companies . . . and more administrative burdens and obstacles for women to get the coverage they need."
Jake Thompson, a spokesman for Nelson, said the senators crafting the compromise had not consulted with insurers. "As far as what insurers might do, that's hypothetical," he said.
Insurance representatives said it is too soon to say how the language would shape their offerings. But Wellpoint spokeswoman Kristin Binns noted that the insurer already navigates different rules in offering products in 14 states. "We comply with all the regulations, so however they pan out, we'll comply accordingly," she said.
To abortion opponents, the new language is objectionable simply because it would permit federal subsidies for people who buy plans with abortion coverage. They are not reassured by the prospect that insurers may find the language so unwieldy that they would stop offering such coverage.
"This is so murky that it's difficult to predict how it would be implemented," said Douglas Johnson, legislative affairs director for the National Right to Life Committee.
If the Senate bill passes, it will be up to a conference committee to come up with a solution. Stupak, who got 64 Democrats to vote for his amendment, has already declared the Senate language "unacceptable."