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RH Reality Check

The Nelson 'Compromise': What It Will Cost Women

Jodi Jacobson

The weeks-long soap opera of finding 60 votes for the Senate health
reform bill came to an end yesterday when Democrats "compromised" with
Senator Ben Nelson (D-NE) on language regarding abortion coverage. 
After catering first to Senator Joe Lieberman, (Ind-CT), by removing
both the public option and the Medicaid buy-in, Majority Leader Harry
Reid (D-NV) then introduced a manager's amendment that includes new
language on abortion care--and a huge barrel of pork for Nebraska--in
an effort to bring Nelson on board and get the 60 votes needed to end a
Republican filibuster.

In doing so, the Senate aided the anti-choice community in achieving
one of its primary goals: further stigmatizing reproductive and sexual
health care, including but not limited to abortion, and making such
care ever-harder for women to secure. This is and was unquestionably a
major goal of Nelson's hold-out strategy.  Nelson has consistently
voted against expanded contraceptive services, voting no, for example, in 2005 on a program to invest $100 million to reduce teen pregnancy
through increased access to sexual and reproductive health education
and contraceptive services.  Over the past month, he has several times
made a point of "waiting for the approval" of the U.S. Conference of
Catholic Bishops and anti-choice organizations on language for the
Senate bill.

Meanwhile, the drama over Lieberman and Nelson also aided the Republicans in one of their primary goals: first to kill, and barring that, to severely weaken any attempt to reform health care in this country.

What does the "Nelson" language say?

Pro-choice advocates are still examining the implications of the
Nelson language.  But conversations with several analysts over the past
24 hours suggest that if passed into law in the final health care bill,
this langauge, at a minimum, does the following:

  • Requires every enrollee--female or male--in a health
    plan that offers abortion coverage to write two separate checks for
    insurance coverage.  One of these checks would go to pay the bulk of
    their premium, the other would go to pay the share of that premium that
    would ostensibly cover abortion care.  Such a check would have to be
    written separately whether the share of the premium allocated for
    abortion care is .25 cents, $1.00, or $3.00 of the total premium on a
    monthly, semi-annual or annual basis.  Employers that deduct employee
    contributions to health care plans from paychecks will also have to do
    two separate payments to the same company, again no matter how small
    the payment.
  • Eliminates the provision in earlier versions of the Senate
    bill and in the original Capps language in the House bill to ensure
    that there is at least one insurance plan in each exchange that offers
    and one that does not offer abortion coverage. 
  • Prohibits insurance companies by law from taking
    into account cost savings when estimating the costs of abortion care
    and therefore the costs of premiums for abortion care.
  • Includes "conscience clause" language that protects only
    individuals or entities that refuse to provide, pay for, provide
    coverage for, or refer for abortion, removing earlier language that
    provided balanced non-discrimination language for those who provide a
    full range of choices to women in need. 

What are the implications of the Nelson deal?

"Separate checks, please:"

Analysts note that requiring enrollees to pay separately for their
"base premium" and their "abortion care" premium will have several
negative effects, some very similar to or the same as the Stupak

First, the separate checks/separate payments policy will have the same
effect as would so-called abortion riders that, under Stupak, would in
theory require women to purchase a single-service abortion policy
separate from their health insurance package.  Under the Nelson
scenario, health plans are required to deposit the payments into two
separate accounts - one for the abortion payments and one for
everything else, presumably as a way of ensuring only private funds are
used for abortion care.

But, notes Planned Parenthood:

forcing individuals to write two separate checks (both of which are  out of private funds) and requiring health plans to administer two different payments
of private funds is not necessary to insure public funds are not used
for abortion care.

"There is no policy justification for forcing individuals to write two separate
checks from their private bank accounts," notes one analyst.  "Health
plans themselves can easily establish a firewall separating public
funds from private funds and ensure that only private funds are used
for abortion care. This provision only serves to stigmatize a woman's
right to comprehensive insurance coverage that includes abortion."

Moreover, as with the Stupak Amendment, over time the Nelson
language will likely cause a major shift in coverage of abortion care. 
Today, more than 85 percent of women with private insurance are
enrolled in plans that cover abortion care.  As noted here before,
insurance companies are nothing if not profit maximizers.  With
increasingly onerous accounting and reporting requirements placed on
abortion care, both insurance companies and employers seeking to
dramatically limit the costs of insurance coverage are likely to stop
offering coverage for abortion care altogether.

In other words, the Nelson language will likely have the same outcomes suggested by the George Washington University Study on which we reported in detail some weeks back, including:

  • moving the industry away from current
    norms of coverage for medically indicated abortions.
  • inhibiting development of a supplemental coverage market for medically indicated abortions.
  • "Spillover" effects as a result of administration of
    Stupak/Pitts will result in dramatically reduced coverage for
    potentially catastrophic conditions.

Again it is important to note there is no policy justification
whatsoever for the separation of "check and state" because these are
private funds. Instead this provision is a means of making it harder
for millions of women to make a legal, moral choice about their lives,
their families and their health care.

"Not in My State"

State legislatures currently have the right to prohibit insurance
companies from covering abortion care in either public or private
employee health plans, and 17 states do so, including Arkansas,
Colorado, Idaho, Illinois, Kentucky, Massachusetts, Missouri, Nebraska,
Ohio, Oklahoma, Pennsylvania, Virginia and Wisconsin.

At first glance, it appears as though the Nelson language simply
reiterates current policy.  But the fact is that the ultimate shape of
health reform legislation will change that in numerous ways.

Under lanuage in the original Capps Amendment in the House and in
the original Senate bill introduced by Reid, millions of women who have
coverage for abortion care would have kept that coverage, and millions
of others currently without coverage might well have freely chosen
plans that covered abortion care, because the requirement for balancing
"pro-choice" and "no-abortion-coverage" plans in the exchanges would
have allowed individuals to make their own decisions about enrolling in
a plan that did or did not cover such care.  This would actually have
been a gain for those who did not want plans that cover abortion care,
because today, most plans do, and most people pay into plans that cover
such care whether they want to or not. 

Now, however, the combination of onerous requirements and separate
checks, the number of anti-choice legislatures at the state level, the
removal of the public option (which would have driven down costs
overall), and the removal of requirements that at least one plan in
each exchange provide abortion coverage imply that millions fewer women
will have coverage for abortion care than do now.  And...women's rights
will increasingly be decided on a state-by-state basis.  The mounting
economic pressure on the system to drop what will now be burdensome
requirements for abortion care will increase as the trend away from
employer-paid health plans increases and as individuals will now be
mandated to purchase insurance coverage.

Legislating Market Farces

There is a simple economic fact about abortion care.  In the case where a woman has decided not to carry a pregnancy to term,
it is cheaper to provide her with abortion coverage than to force her
to carry to term for lack of safe options or affordable abortion care
and to therefore pay for pre- and post-natal care, labor and delivery
care, and general maternity care, never mind potential complications. 
(We will put aside for the moment the fact that many plans do not
provide maternity care coverage at all).

To reiterate: It is cheaper to provide a woman who knows she does not want
to carry a pregnancy to term and chooses abortion with access to an
early abortion than it is to force her to carry to term for lack of
safe alternatives.  This has nothing to do with encouraging women not
to carry wanted pregnancies to term on the basis of cost.

It is also unquestionably cheaper to provide coverage for abortion
care for women facing catastrophic fetal anomalies or threats to their
life or health than it is to deal with the aftermath of complications
from such pregnancies left unaddressed.

The Nelson language, however, legislates a "market farce," by
prohibiting insurance companies from calculating or taking into account
when deciding on the level of premiums needed the cost savings from
abortion care as against maternity care.  

As one expert put it:

This is a tax on women and a fraud perpetrated on the country.  By
ignoring the cost-savings, it unfairly presents abortion coverage as
far more expensive than it actually is.  This is no different than
focusing on the harms caused by cutting someone with a scalpel while
ignoring any benefits from surgery.

There's a reason why 87% of private plans offer abortion
coverage.  It makes little sense to deny this coverage to women who
want to terminate a pregnancy - after all, the costs of prenatal care
and childbirth are far higher in almost every case. [But under the
Nelson language], insurers can only take into account costs but not
savings, which means that the fee for the rider will be artificially
high  [and] of course the insurance companies will keep the windfall.

[The cost issue] is not why I
support reproductive rights
but that's just how it is.  Pro-lifers don't like the fact that a
market-based solution, so intrinsic to many of their other arguments,
does not lead to the outcome they want, so they lie about the numbers. 
And it is so typical of pro-life arguments; a pathological need to hide
the truth from people and use fake numbers to make their point.  There
is absolutely no justification for not including cost savings in the
calculation except that the reality of the situation is unsavory to

Under the Nelson language, then:

Women now get a Hobson's choice.  They can live in a state that
completely opts out of coverage, meaning that coverage will essentially
be totally unavailable.  Or they can live a state that provides some
limited coverage, but only if they pay an inflated and unreal price
through additional bureaucratic coverage.  The manager's amendment is a
double barrier in the way of women's access to healthcare.

"My conscience is more important than your conscience:"

Anti-choice forces, and even the media and some self-identified
pro-choice representatives are fond of talking about the "moral
dimensions" of abortion, in this case implying there is only "one
right" moral dimension, and further implying that abortion is a bad or
shameful thing.

However, ethicists, people of faith, and normal
everyday citizens understand completely that there are vastly different
opinions within different faith traditions and among individuals on the
justifications of choosing to terminate a pregnancy, and that choosing
abortion can be and is a good "moral choice" for many women, their
partners and their families when their own circumstances dictate.

But in adopting the Nelson language, the Senate would be deciding that
there is only "one" right moral choice. Indeed it is Ben Nelson's own
"moral choice" being imposed on women in the United States.  Given that
Nelson, one Senator who represents a state with a mere 0.62 percent of
the entire U.S. population, won such a sweeping concession suggests
that he believes--and the Senate leadership was willing to concur--that
his own moral principals and views take precedence over those of the
roughly 152 million females in the United States, a third of whom have
had or according to current patterns will have an abortion in their

In fact, the original language in the Senate bill respected all viewpoints on abortion, notes the Center for Reproductive Rights, whereas the Nelson language promotes discrimination based
on viewpoint, by protecting:

individuals and health care facilities
against discrimination if they oppose abortion, leaving unprotected and
vulnerable those who believe with
equal fervor that women should have access to comprehensive reproductive health care, including
abortion. This lopsided protection is inconsistent with the concepts of balance
and fairness.

This language also puts anti-choice ideology ahead of health.

"Women should be able to access the health care they need," states
CRR,"and health care providers should not be discriminated against for
providing it."

But the language now in the Manager's Amendment
does just that, allowing discrimination against those who would provide
abortion services, jeopardizing women's access to essential health care

As with the Stupak Amendment, these changes are a far cry from the
abortion-neutral health reform strategy on which anti-choice
groups--most notably the USCCB--ostensibly agreed earlier this year.

In fact, the question remains whether sexual and reproductive health
care is the only issue here.  Over 80 percent of those who voted for
the Stupak Amendment voted against the health reform bill in the House
in any case. So we gave up the veritable ship and got absolutely
nothing in return.

The constant carrying of the Republican, ultra-conservative,
religious fundamentalist agenda in the Senate first by Lieberman and
immediately thereafter by Nelson, the ping-ponging of their "yes, I'm
in, no I'm out," changes of heart (can we call them "fickle?"), the
fact that the Bishops and Stupak immediately jumped to denounce the
Nelson language for reasons that remain less than clear and the fact
that the Bishops seem just fine thank you with lack of movement on
their other "core" issues in health reform all suggest there is no
hunger among these groups for health reform per se.  By accommodating
these regressive forces, we have once more thrown women under the bus
for the purpose of an agenda that does not reflect health, human
rights, nor even the stated desire of the majority of the American
population, but rather a small handful of white men.

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