Several news outlets are reporting that Democrats have decided to abandon their negotiations with Rep. Bart Stupak (D-MI) and take the risk that some small number of pro-life Democrats will vote against the Senate bill. Democrats reason that fixing the provision through reconciliation would be impossible and passing a separate bill is unlikely, especially after Stupak rejected an offer to take up abortion after reform.

But the biggest cause for this new push is the realization, on the part of the Democratic leadership, that many moderate pro-life Democrats actually read pages 2069-2078 — which Stupak regularly cites to demonstrate that he is an authority on the subject — and learned that it doesn’t do what Stupak says it does.

Brian Beutler quotes Henry Waxman (D-CA) as saying that the decision to cut off negotiations isn’t final, but likely:

But most members feel that the abortion issue was dealt with in the Senate-passed bill….Ironically, what we have is a situation on abortion which neither side is now particularly happy about and so I don’t now how we’ll resolve it but we’ll keep looking….

We just have to all stay open and keep talking until we see where we end up….

There are many people who share his views who are voting for this bill. They feel strongly about the pro-life position but they feel like the Senate bill encompasses a compromise that they can accept in this legislation and they’re willing to go forward with it. There are some who take a different view and we hope to convince them to join us and they hope to us to make them concessions.

So it sounds like Stupak’s gang members have decided that passing health care reform is, in the words of Mitt Romney, “the ultimate pro-life effort” — one that supersedes Stupak’s goal of striping abortion coverage out of private health insurance.

The abortion issue appears to be solving itself, but Democrats still face significant hurdles to passing the Senate bill in the House. Undecided lawmakers have yet to commit to supporting legislation they have not seen and some members are still asking for major legislative changes. On Thursday, Democrats told the New York Times that “they were not given the text of the latest legislation” and some lawmakers from the Hispanic Caucus are frustrated with the Senate bill’s restrictions against undocumented Americans purchasing coverage and are threatening to vote against health care reform unless changes are made to the bill’s harsh immigration provisions.

House Speaker Nancy Pelosi (D-CA) won’t know if she has the votes until the last possible moment and there is certainly no guarantee that they will pass it.

Last night, Rachel Maddow observed that the number of Democratic lawmakers who have joined Rep. Bart Stupak’s (D-MI) crusade to bring down health care reform unless Congress amends the Senate bill’s abortion language, keeps shrinking. Stupak began the debate with that 15 to 20 supporters, then that number fell to “at least 12,” and as of yesterday, it’s dwindled even lower. A senior House aide told Maddow, “We do not see more than four or five members standing with Bart when this bill is actually brought to the floor.”

Indeed, it seems like a shrinking number of moderate Democrats are willing to take part in Stupak’s effort to lie about the provisions in the Senate bill in order to strip abortion coverage from private health insurance. On Tuesday, Rep. Dale Kildee (D-MI), “a ‘yes’ vote on reform who backed the Stupak language,” told reporters that “the Senate language will restrict the federal funding of abortions and that he’ll probably vote for the final bill” and today, Rep. Jason Altmire (D-PA), who also supported the Stupak language, said that the Senate bill does not spend federal dollars on abortion:

ALTMIRE: I am pro-lifer. I voted for the Stupak amendment and I’m not going to support a final bill that allows one penny of tax payer funding to be used for abortion. There is no question, the Stupak amendment was air tight. It was much cleaner and it was something that you could not dispute at all. The Senate bill is worded awkwardly, it is not written in a good way. But I am not convinced that it allows taxpayer funding of abortions. It doesn’t go as far as Stupak clearly it’s not as air tight as Stupak….I still haven’t seen good evidence that the Senate language, as is, allows a taxpayer funding for abortion. It could be worded better and less awkwardly, but I don’t know if there is even an indirect abortion funding in it.

Watch it:

Altmire’s tone is important. He’s admitting that the Senate bill is in fact a compromise that doesn’t go as far as the Stupak amendment, but still maintains current law. Meanwhile, pro-choice groups are arguing that the Senate bill goes too far in restricting women’s access to abortion coverage. On Tuesday, “a coalition of more than 50 women’s rights groups wrote Pelosi, Senate Majority Leader Harry Reid and Obama to ask for major revisions to the Senate bill because the current restrictions impose “unacceptable obstacles for women who wish to purchase insurance that includes abortion coverage and for plans that wish to offer it.’” “We are calling on you to make improvements that would ensure that under reform, women will not lose the private health insurance coverage for abortion that they now have,” the groups wrote.

With both sides objecting to the Senate bill, it’s become difficult for Stupak and his gang of four (or five) to perpetuate the fundamentally dishonest claim that the Senate bill spends federal dollars to fund abortions. As a result, honest pro life advocates have begun to admit the truth.

Rep. Bart Stupak (D-MI) is telling reporters that he’s optimistic that he can reach a deal with Democrats on abortion and that “he expects to resume talks with House leaders this week in a quest for wording that would impose no new limits on abortion rights but also would not allow use of federal money for the procedure.” “I’m more optimistic than I was a week ago,” Stupak told the Associated Press. “So is there some language that we can agree on that hits both points, we don’t restrict, we don’t expand abortion rights? I think we can get there.”

If Stupak is serious about strengthening the abortion provisions in the Senate bill — and so far, it’s not clear that he is — Democrats would have to pass a separate bill to change the Senate’s abortion provisions. Below is a comparison of the abortion language in the House and Senate reform bills and some options for how Democrats can persuade pro-life Democrats to vote for reform:

Original Provisions In Nelson Amendment (Senate Bill)	Similarities In Nelson And Stupak Amendments	Original Provisions In Stupak Amendment (House Bill)
- If a health plan chooses to cover abortion, the plan must collect a separate privately-paid premium to cover the abortion coverage from the enrollee or the enrollee’s employer. The funds must be kept in a separate account used solely for abortion coverage. - A state may prohibit all plans in an exchange in the state from covering abortion, regardless of whether they receive a public subsidy. - Insurers that provide abortion coverage must charge at least $1 a month in private premiums for a reserve fund to cover abortion services. - Implicitly prohibits federal agencies and programs, and state and local governments that receive federal funding, from discriminating against individuals or institutions that don’t provide, pay for, cover, or refer for abortion by adopting existing federal rules.	- Plans may not be required to provide abortion as an essential service - Both amendments prohibit use of premium affordability tax credits or cost-sharing payments to pay for abortions - Both amendments prohibit insurance plans from discriminating against providers for their unwillingness to cover abortion *** Can Democrats Bridge The Gap? 1. Nix $1 Fee: Stupak has criticized the Senate bill for requiring Americans enrolled in plans that provide abortion coverage to pay at least $1 into a reserve fund. Negotiators can take this provision out of the bill, and charge insurers with the task of allocating enough funds to cover abortion. 2. Stricter Segregation: Lawmakers can introduce stricter accounting requirements for segregating public and private funds. The legislation can require insurers that cover abortions to demonstrate that they have the capacity to segregate funds. 3. New Rules for Segregation: The bill can layout “clear, strict rules for separating public funds from the premiums of private individuals” 4. Stronger Conscience Protections: Final legislation can adopt the House bill’s broader conscience protection language.	- If a health plan is purchased using federal support, abortion coverage must be purchased with private funds under a separate supplemental policy. - Explicitly prohibits federal agencies and programs, and state and local governments that receive federal funding, from discriminating against individuals or institutions that don’t provide, pay for, cover, or refer for abortion.

To be clear, most progressives would rightfully argue that the existing Senate measure already goes further than current law by regulating the abortion coverage of private insurers. As Jessica Arons points out, the Nelson amendment places “unprecedented restrictions on private insurance coverage for abortion care, making it much more cumbersome for insurers to offer coverage and for consumers to obtain it.”

Several news reports are suggesting that Democrats have begun negotiating with Rep. Bart Stupak (D-MI) over his objections to the Senate’s abortion provisions (found on, as he likes to point out, on pages 2069-2078 of the Senate health care bill). To dissuade Stupak and his 10-12 anti-abortion colleagues from their paranoia about the government funding abortions, the House would have to pass a completely separate bill before accepting up the Senate legislation.

Negotiations would make sense if Stupak had some legitimate criticism about the Senate language or shared Democrats’ goal of maintaining current funding restrictions. But Stupak is not interested in protecting Hyde. Throughout the health care debate, he has relied on a fundamentally dishonest reading of the legislation because he has understood that health reform is his best opportunity to strip abortion coverage from private health insurance and now, he’s milking it for all it’s worth.

When NPR’s Michelle Block asked Stupak if he’s “really misreading what’s in the language in that Senate bill,” Stupak replied, “I don’t think I misread it” and explained that he understood the Senate abortion language because he was familiar with an earlier (and in some ways less restrictive) abortion amendment the Rep. Lois Capps (D-CA) introduced in the House:

STUPAK: Well, I don’t think I misread it. I sit on the Energy and Commerce Committee where Lois Capps injected the same language – the same language in the House bill. So, no, I sat through the committees. It’s very clear. The groups such as the Catholic Bishops, the Right to Life were all reading the language the same way. This is a drastic, radical departure from current federal law which says no public funding for abortion.

But Stupak really knows better. He understands that the Senate language is actually far more stringent than the Capps amendment. While Capps protected Hyde by specifying that subsidy dollars could only be used to abort pregnancies that threaten the life of mother or result from rape or incest, the Senate version explicitly instructs insurers to collect two separate checks from policy holders, sets standards for allocation accounts and authorizes state insurance commissioners to audit insurers’ compliance with the segregation requirements.

These details don’t matter to Stupak because he’s not interested in finding a way to keep public dollars from funding non-Hyde abortion. He wants to restrict abortion coverage in private insurance and his abortion amendment does just that. But fortunately, as Rep. Diana DeGette (D-CO) points out, “Ten or 11 votes is not going to kill the bill.” “Many of the 39 conservative Democrats who voted against the House bill could well find the moderate Senate version more to their liking.” Stupak is holding the health care bill hostage because he sees is it as an opportunity to insert his minority views into the legislation, but Democrats should call his bluff, keep the already-restrictive Senate abortion language and strip Stupak of his chairmanship.

Yesterday, President Obama signaled his support for passing the Senate health care bill in the House alongside a reconciliation package of fixes, but pro-life Democrats led by Rep. Bart Stupak (D-MI) have pledged to oppose the Senate bill unless Congress strengthens the prohibitions against federal funding of abortion. Following Obama’s address, Stupak appeared on MSNBC and Good Morning America to argue that the Senate health care bill allows for public funding for abortion:

STUPAK: In the Senate bill, it says ‘you must offer insurance policies that will be paid for by the federal government that covers abortion.’ ‘You must do so.’…Also, in the OPM, Office of Personnel Management, policies they will be putting forth, you must pay, every enrollee must pay one dollar per month into a fund to help fund abortions.

Watch a compilation:

Stupak may have confused his page numbers, but pages 2069-2078 of the Senate health care bill clearly prohibit federal dollars from funding non-Hyde abortions. In fact, contrary to Stupak’s claim, page 2017 (lines 18-21) of the Senate bill give insures the choice of providing abortion coverage. “The issuer of a qualified health plan shall determine whether or not the plan provides coverage [for abortion].” If the carrier chooses to provide abortion coverage, “the issuer of the plan shall not use any amount attributable to any of the following for purposes of paying for [abortion] services,” the bill says, before barring insurers from using government premium credits and cost sharing reductions to finance abortion coverage.

Furthermore, the bill requires insurers to “collect from each enrollee in the plan (without regard to the enrollee’s age, sex, or family status) a separate payment” for abortion services and deposit the payments into separate “allocation” account. “The issuer of the plan shall deposit…all payments described in subparagraph (B)(i)(I) into a separate account that consists solely of such payments and that is used exclusively to pay for services other than services described in paragraph (1)(B)(i).”

Ironically, Stupak’s second concern about paying at least $1 into a reserve fund for abortion coverage was actually included in the legislation to allay pro-life concerns and ensure that no taxpayer money is spent on abortion. The $1 is coming out of private premiums, not public dollars, and is a way of ensuring that carriers have sufficient funds to cover the services they offer. But Stupak is just shifting the goal posts. First he complained about taxpayer funding for abortion and once Democrats strengthened the Senate language, he began arguing that private funds will not go towards abortion coverage. He simply can’t have it both ways.

If Democrats decide to change the Senate’s abortion language, they may have to add the provision to a separate non-reconciliation measure, but it’s still unclear that Stupak would vote for reform. On Monday, Stupak told the Wall Street Journal that “abortion isn’t the only issue that will keep him from voting for the Senate bill if Speaker Nancy Pelosi brings it to the House floor.” “It’d be very hard to vote for this bill even if they fixed the abortion language,” he said. Asked whether there was any way he would vote for the current package, he had one word: “Nope.”

On Friday, during a town hall in Houghton, Michigan Rep. Bart Stupak (D-MI) refused to commit to voting against a health care bill that did not include the House bill’s abortion language. “I will work with Democratic leadership, hopefully we’ll get this issue worked” Stupak began, as the audience broke out in laughter at his nonresponse.

After repeatedly pledging to vote against any bill that did not include very severe restrictions on abortion, Stupak emphasized at the town hall that he does not make outright commitments or pledges and explained that if the final legislation did not meet his requirements, he would review the entire bill before deciding how he would vote:

If this public funding for abortion, if we change current policy, I will read the bill, make sure if that is the last issue, I probably will not vote for it. But I am not going to — we’re still negotiating. You do not play all your cards at the poker table while you are negotiating…. I would be hard-pressed to vote for something that has public funding for abortion…Let’s read the legislation and see what it says.

Watch it:

It’s unlikely that the final health care bill would not provide federal funding for abortion that goes beyond the Hyde restrictions. The original Capps Amendment in the House bill and the abortion compromise in the Senate legislation both segregate public and private funds, and only allow private premiums to be used for abortion coverage. The Senate bill would require the applicant to write a separate check to pay for abortion services.

Stupak claimed that he had rounded up 10 or 12 other Representatives (he had previously said he had 10-20 commitments) to vote against a final bill that does effectively ban coverage for most abortions from all public and private health plans in the exchange. “I really feel, because there is such a strong sentiment in the U.S. Congress to get health care worked out, it may not be the end of January, it might be the end of February and I don’t see anything magic between January 28th, having it done by then or February 28th,” he said. “I think in the final analysis it will get resolved. I hope it does, but if it doesn’t…maybe you do have to defeat it. Doesn’t prevent you 30 days later from bringing back a bill addressing the objections of members and why the voted against it.” “There is time to do it…I think we get a health care bill eventually.”

This afternoon, as the Senate began debate on Sen. Ben Nelson’s (D-NE) amendment to prohibit federal funds from being used for abortions or for plans that include abortion services, Sen. Barbara Boxer (D-CA) drew a parallel to help the amendment’s male co-sponsors better understand its repercussions.

Since Nelson’s measure forces women to purchase special abortion riders, Boxer challenged “the men who have brought us this” to “single out a procedure that’s used by a man or a drug that is used by a man that involves his reproductive health care and say they have to get a special rider”:

There’s nothing in this amendment that says if a man some days wants to buy Viagra, for example, that his pharmaceutical coverage cannot cover it, that he has to buy a rider. I wouldn’t support that. And they shouldn’t support going after a woman using her own private funds for her reproductive health care. Is it fair to say to a man you’re going to have to buy a rider to buy Viagra and this will be public information that could be accessed? No, I don’t support that. I support a man’s privacy, just as i support a woman’s privacy.

Watch it:

When Sen. Orrin Hatch (R-UT) introduced a very similar amendment during the Senate Finance Committee’s mark-up of the health care bill, Sen. Debbie Stabenow (D-MI) called the measure “offensive.” “This is an unprecedented restriction on people who paid for their own health care insurance,” Stabenow said. “The assumption that somehow a woman or family would say, ‘you know some day we may have an unintended pregnancy, so we’ll get a separate rider or maybe my pregnancy is going to have a crisis, many, many crises, and so we’re going to find some other rider.’ In my judgment, I don’t even know how that would work.”

Nelson’s amendment — which is expected to fail on the Senate floor — closely resembles the restrictive Stupak language in the House health care bill. Sens. Hatch, Casey, Brownback, Thune, Enzi, Coburn, Johanns, Vitter, and Barrasso are co-sponsoring the measure.

A new study from George Washington University casts doubt on the argument that “restrictions on abortion coverage approved in the House version of the health-care bill likely will affect the affordability of the procedure for only a small minority of women.” The study finds that “the treatment exclusions required under the Stupak/Pitts Amendment will have an industry-wide effect, eliminating coverage of medically indicated abortions over time for all women, not only those whose coverage is derived through a health insurance exchange”:

In effect, the size of the new market is large enough so that Stupak/Pitts can be expected to alter the “default” customs and practices that guide the health benefits industry as a whole, leading it to drop coverage in all markets in order to meet the lowest common denominator in both the exchange and expanded Medicaid markets. Furthermore, for the reasons outlined above, because the Stupak Amendment bars the subsidization of plan administration activities in connection with prohibited procedures, it can be expected to chill the development of abortion coverage supplements as well as entirely separate plans to non-subsidized women. .

The Stupak amendment “is intended to reach only a specific part of the market,” but in effect, the provision — which prohibits the government from funding any plan that offers abortion coverage — could “move the entire health benefits industry away from its current inclusive coverage norms and toward a new norm of exclusion,” the report concludes.

Given the size of the market in the Exchange (30 million and growing), the scope of the amendment, and the technical challenges and difficulties that arise from administrating supplemental abortion coverage, insurers will “shift away from current abortion coverage norms“; excluding abortion from coverage will become the new norm.

Ultimately, “companies offering coverage products in the employer-sponsored market” “may elect to simply remove the [abortion] procedures from their products so that they can be sold in all markets.” The Stupak amendment will discourage insurance companies from providing abortion coverage and increase the costs of the procedure:

- Amendment could chill the development of abortion coverage supplements: Since Stupak effectively requires that supplemental abortion coverage “be administered separately from other plans,” the cost of supplemental abortion coverage “could be expected to be far higher than simply the cost” of any other supplemental policies.

- Companies would have to absorb the extra administrative costs of providing supplemental abortion coverage: “Not only would companies have to absorb all costs of administration into the supplemental or separate plan fee, but companies would confront having to expand provider networks to assure access to the full range of medically indicated abortions in the case of women who purchase expanded coverage.”

- Cost of later-term abortions would be particularly expensive: The cost of abortions performed later in pregnancy can already “carry a price tag in the thousands of dollars.” However, since this coverage will now be sold as supplement — excluded from the larger risk pool — “the cost of a supplement or a plan that carries additional coverage could be considerable.”

- No incentive for companies to offer additional coverage for women who move into Exchange: While a migration over time of thousands of smaller employers (who offer abortion coverage) into the Exchange “might encourage health benefit services companies to create supplemental abortion coverage products,” the Stupak amendment discourages their development. Currently, almost no insurers offer supplemental abortion coverage in states that already bar the sale of products that offer abortion coverage. The Stupak amendment is designed “to push the price of supplemental coverage higher by prohibiting the integration of administration costs into a single administrative scheme.”

- What if the abortion procedure is part a broader treatment? Under Stupak, plan administrators can only pay for abortions that threaten the life of the mother. But what if the abortion procedure “is part of broader treatment for a serious health condition?” What if the procedure must be performed to in the course of treating a significant health problem? “In these circumstances, how are plan administrators to distinguish between the abortion procedure and the rest of the treatment? Will the entire cost of a course of treatment (e.g., surgery to repair a damaged pelvis following an automobile accident) be denied if abortion is part of the procedure? Health plan administrators, confronted with the prospect of a legal violation for paying for the excluded abortions, may elect to deny the treatment altogether, claiming that it is all related to the excluded treatment.”

The unintended consequences of Stupak are alarming. Legislators have designed a policy that changes the way abortion is treated by insurers and providers in the broader health care market. The amendment devastates the status quo and could prove a serious obstacle to women.

The Pittsburgh Post Gazette is reporting that Sen. Bob Casey (D-PA), a pro-life leader in the Senate, will likely oppose the Stupak abortion amendment. Casey’s office issued a press statement clarifying that the Senator supports preserving the status quo on abortion coverage:

Senator Casey has been a vocal supporter of health care reform and voted for the HELP Committee bill in July. He supports the public option to increase competition and reduce costs. And he is offering amendments to improve health care for children. Senator Casey thinks that health care reform should not be used to change longstanding policies regarding federal financing of abortion which has been in place since 1976.

He continues to work with his colleagues in the Senate and with the White House to ensure that the Senate health care reform bill protects existing federal and state conscience protections, existing state abortion laws and contains strong language to prohibit federal funds from being used to fund abortions. He voted for amendments in the HELP Committee that would maintain neutrality on abortion. Until Senate bill language is released it is premature to discuss next steps.

The existing abortion language in the Senate bill maintains the status quo by ensuring that federal dollars can only be used to pay for abortions when the pregnancy threatens life of mother or results from rape or incest. Only private premiums could be used to pay for so-called ‘elective’ abortions.

Democrats believe that pro-life advocates would not be able to muster the requisite 60 votes to pass a more restrictive amendment that would make it difficult for many private plans to provide abortion coverage. “If someone wants to offer this very radical amendment, which would really tear apart [a decades-long] compromise, then I think at that point they would need to have 60 votes to do it,” Sen. Barbara Boxer (D-CA) said during a recent interview with the Huffington Post. “And I believe in our Senate we can hold it.” On Monday, President Obama also indicated that he wanted to preserve the status quo on abortion coverage.

Casey’s statement, while promising, does not guarantee that the Senator won’t vote for a bill that includes stricter abortion restrictions. During the Health, Labor, Education and Pensions Committee’s (HELP)’s mark-up, Casey provided the only Democratic vote to at least four anti-choice amendments, all of which ultimately failed. One such amendment — offered by Sen. Orrin Hatch (R-UT) — closely resembled the Stupak provision.

If the Senate bill retains its current abortion compromise, it’s likely that the conference report will include similar language. Already, 41 House Democrats have sent a letter to Speaker Nancy Pelosi (D-CA), vowing to vote against the final conference report if it contains the Stupak amendment.