Bargaining away women’s rights

March 26, 2010

Rachel Cohen explains how women's reproductive rights were treated as a bargaining chip during negotiations on health care--and ultimately suffered another setback.

"THE BILL I'm signing will set in motion reforms that generations of Americans have fought for and marched for and hungered to see," declared Barack Obama at a White House ceremony on Tuesday.

But the health care legislation that Obama made a law includes a further step backward for women's right to choose abortion that "generations of Americans" definitely did not hunger to see.

The new health care law falls short on many levels. It will "mandate" millions of people to buy insurance from private companies with no guarantee that the policies will be affordable--or adequate in covering them if they actually get sick. It will force cuts in spending and benefits for the Medicare program for the elderly, and it will encourage the ongoing whittling away of coverage that most Americans have through their employers.

But one of the most galling provisions of the legislation for all the people who looked forward enthusiastically to Barack Obama's presidency comes on the question of the right to choose. President Obama, House Speaker Nancy Pelosi and the rest of the Democrats have delivered one of the most sweeping attacks yet on abortion rights.

Anti-abortion Democrat Bart Stupak
Anti-abortion Democrat Bart Stupak

Rep. Bart Stupak and other anti-choice Democrats used the health care reform debate to continue their crusade against abortion rights. In November, Stupak succeeded in attaching an amendment to the House's first version of health care legislation that would have barred insurance companies selling policies to the uninsured through the government-run "exchange" from providing plans that covered abortions.

Stupak claimed that the amendment would have forced insurance companies to drop only elective abortions. But as a George Washington University report concluded, the exclusion of elective abortion coverage from private insurance plans would imperil coverage of medically indicated abortions as well.

NOW, MONTHS after the initial outrage over the House's Stupak amendment, the final version of health care legislation passed with a provision on abortion that achieves almost the same effect.

Under language written by anti-abortion Sen. Ben Nelson, women could purchase insurance that covers abortion through the new exchange, but they would have to write two separate checks for each premium payment--one to pay for a special "rider" to cover potential abortion care and another to pay for the rest of her coverage.

Insurers are likely to drop abortion coverage rather than follow what Physicians for a National Health Program called a "burdensome segregation of insurance funds for abortion and for all other medical services."

But even this wasn't good enough for Stupak. Claiming that the bill would violate the 1976 Hyde Amendment barring federal funds for abortion services, Stupak vowed to lead fellow conservative Democrats in opposing the final version of health care.

At the eleventh hour, Stupak extracted a commitment from the administration and Democratic leaders in Congress that the president would to sign an executive order affirming that the health care law wouldn't lead to federal dollars being used to pay for abortions.

Obama signed the order on Wednesday, and the White House issued statement that claimed: "The President has said from the start that this health insurance reform should not be the forum to upset longstanding precedent. The health care legislation and this executive order are consistent with this principle."

That's not true. By signing his name to the order, Obama added both his endorsement and the weight of his office to the Hyde Amendment. That is a step backward.

Contrary to popular belief, the Hyde Amendment isn't a permanent law, nor does it necessarily apply to all federal spending. It is a provision routinely attached to annual appropriation bills that primarily restricts Medicaid funds from being used to cover abortions. The Hyde Amendment also spurred legislation requiring federal employees to pay for abortions out of pocket.

Moreover, the health care legislation will go a long way toward "upsetting" another "long-standing precedent": women's access to private insurance covering elective abortions. The red tape of writing two separate checks will be another strong disincentive for insurers providing abortion coverage.

As National Organization for Women President Terri O'Neill wrote:

Contrary to the talking points circulated by congressional leaders, the bill passed today ultimately achieves the same outcome as the infamous Stupak-Pitts Amendment, namely the likely elimination of all private as well as public insurance coverage for abortion...Even employers will have to write two separate checks for each of their employees requesting the abortion rider.

The Hyde Amendment has already had a marked impact on the lives of millions of low-income women and families. The disappearance of abortion coverage from private insurance plans would have a similar effect.

According to a 2009 Guttmacher Institute literature review, the exclusion of abortion from Medicaid coverage forces one-fourth of women who would obtain a Medicaid-funded abortion if given the option to carry their pregnancies to term, and it frequently delays other women obtaining abortions by two to three weeks.

The study reads as a chilling warning of what lies ahead for millions of women on the brink of losing abortion coverage:

Lacking insurance coverage, some poor women need a considerable amount of time to come up with the money to pay for an abortion, and may have to pull resources from other family necessities, like food or rent, if they are able to find the funds at all. As the cost of the procedure increases with gestation, many poor women become trapped in a vicious cycle of scrambling to raise enough money before the cost--and risk--increase further, while others are left with no recourse but to carry an unwanted pregnancy to term.

The NOW statement also takes aim at another ugly aspect of the health care law:

The bill also permits gender-rating, the practice of charging women higher premiums simply because they are women. Some are under the mistaken impression that gender-rating has been prohibited, but that is only true in the individual and small-group markets. Larger group plans (more than 100 employees) sold through the exchanges will be permitted to discriminate against women--having an especially harmful impact in workplaces where women predominate.

UNFORTUNATELY, NOT all of the nationally recognized pro-choice groups have mustered an opposition to the bill's attacks on women.

Planned Parenthood's response to the health care legislation can be found on its Web site under the headline "Victory!" The group claims the health reform bill is "a huge victory for women's health, but our work isn't over yet. Thanks to supporters like you, we were able to keep the Stupak abortion ban out of the final legislation and President Obama did not include the Stupak language in his executive order." The statement includes a helpful form for work yet to be done: send an automated email to your representative letting them know if you're happy or sad about their vote on health legislation.

If this is a victory, one shudders to think what defeat would look like.

NARAL Pro-Choice America also gets the bill exactly wrong in its response, which states:

We applaud this tremendous progress, but we will continue to work toward a day when these kinds of achievements can be made without undermining women's access to abortion coverage...

This situation is a reminder that, despite significant pro-choice gains in the last two election cycles, anti-choice lawmakers still outnumber our allies. This is precisely the reason that politicians such as Rep. Bart Stupak (D-Mich.) and Sen. Ben Nelson (D-Neb.) were able to use women's reproductive health as a bargaining chip. We call on members of America's pro-choice majority to channel their anger into action and join us in working to elect more members of Congress who share our pro-choice values.

But it wasn't only Stupak and Nelson who used reproductive rights as a bargaining chip. So did liberal Democrats like Nancy Pelosi and Barack Obama, with their willingness to trade women's access to abortions to gain votes on the health care legislation.

NARAL's statement is consistent with the group's attitude since the early 1990s of adopting the goal of keeping abortion "safe, legal and rare"--mobilizing votes for Democrats as the way to achieve that goal, even when that meant demobilizing independent, grassroots efforts to confront the challenges to abortion rights.

Successive betrayals by Democrats have whittled down access to abortion to an extraordinary extent. As of 2006, 34 states require some parental involvement for a minor to obtain an abortion, and 38 states prohibit abortions after a certain point in pregnancy. Eight-seven percent of U.S. counties have no abortion provider, and many medical schools refuse to even teach the procedure. And in May 2009, a Gallup poll found that only 44 percent of women consider themselves pro-choice.

It's time we stop letting Democrats decide the future of our rights--or counterpose desperately needed reform of the health care system with women's reproductive rights.

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