Stupak Amendment Would 'Effectively Eliminate' Abortion Coverage In Private Market, San Francisco Chronicle Opinion Piece Says

Main Category: Abortion
Also Included In: Health Insurance / Medical Insurance
Article Date: 17 Nov 2009 - 5:00 PST

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Rep. Bart Stupak's (D-Mich.) amendment to the House health reform bill (HR 3962) "could effectively eliminate insurance coverage of abortion services, not just for publicly funded insurance, but for most individual private plans as well," Brietta Clark and Karl Manheim, law professors at Loyola Law School-Los Angeles, write in a San Francisco Chronicle opinion piece. The amendment "is cleverly drafted to masquerade as a 'taxpayer protection' measure but is structured to discourage even privately funded insurance coverage for abortion," the authors state.

The amendment "supposedly permits women to buy supplemental insurance coverage for abortion outside of the exchange, but it seems unlikely that private insurers could offer affordable, separate single-coverage plans," Clark and Manheim continue. They add, "Individuals could theoretically satisfy their insurance mandate by purchasing a regular plan outside of the exchange that includes abortion coverage, but those will be far more expensive or provide fewer benefits," and this "is not feasible for low- and moderate-income women."

According to Clark and Manheim, "To make matters worse, states are prohibited from facilitating abortion coverage" because they "cannot use state matching funds to pay for insurance policies that cover abortions, and they cannot 'discriminate' against insurers that don't offer coverage." The amendment threatens to withhold all federal funds from states that violate those restrictions.

Furthermore, Stupak's amendment "is obviously designed to discourage even medically necessary abortions," as it only would allow coverage of life-threatening procedures, which may be unconstitutional, the authors say. Restrictions on the right to abortion "are unconstitutional if they 'unduly burden' the exercise of the right," Clark and Manheim write. While courts "have upheld prior funding restrictions on abortion services where the restrictions did not create any new obstacle to getting an abortion," the Stupak amendment would create substantial obstacles by "effectively requiring women to purchase health insurance that excludes abortion coverage," according to the authors.

In addition, although the federal government is permitted to impose conditions on how states use federal funds if they relate to the underlying spending program and are not coercive, the amendment "fails this test by withdrawing all federal funding from noncomplying states," the authors write. They add, "It is ironic that conservative members of Congress, who generally advocate for states' rights, would deny states their traditional powers over health and safety" (Clark/Manheim, San Francisco Chronicle, 11/13).

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