The Affordable Care Act very nearly failed to become law back in 2010 because of a dispute among Democrats over how to handle abortion in the bill.
Now a similar argument between Democrats and Republicans is slowing progress on a bill that could help cut soaring premiums and help stabilize the ACA.
At issue is the extent to which the Hyde Amendment — language commonly used by Congress to prohibit most federal abortion funding — should be incorporated into any new legislation affecting the health law.
Republicans generally want more restrictions on abortion funding. Democrats generally want fewer.
Here’s a bit of the history of how we got here.
What is the Hyde Amendment?
The Hyde Amendment, named for Rep. Henry Hyde (R-Ill.), an anti-abortion champion who died in 2007, prohibits federal funding of abortion in Medicaid and several other health programs run by the Department of Health and Human Services. Current exceptions allow for funding in cases of rape, incest or “where a physical condition endangers a woman’s life unless an abortion is performed.”
But the Hyde Amendment is not permanent law. It has been included as a rider every year since 1977 to federal spending bills and its exact language changes from time to time. The rape and incest exceptions, for example, were not included in the annual HHS spending bill from 1981-93. During that time, the only exception was for abortions required to save a pregnant woman’s life.
Hyde-like language has been added to other annual spending bills over the years, so federal abortion funding is also now forbidden in private health insurance plans for federal employees, women in federal prisons, those in the Peace Corps and women in the military, among others.
Over the years, Democrats have worked, unsuccessfully, to eliminate the Hyde Amendment, charging that it unfairly harms low-income women who cannot afford to pay for abortions. Proposed elimination of the language was included in the Democratic Party’s 2016 platform.
Republicans have tried, also unsuccessfully, to write the Hyde funding prohibitions into permanent law. “A ban on taxpayer funding of abortion is the will of the people and ought to be the law of the land,” said then-House Speaker John Boehner (R-Ohio) in 2011.
So, what happened with the ACA and abortion funding?
Republicans in both the House and Senate unanimously refused to support the Affordable Care Act when it passed Congress in 2010. In order to pass the bill over GOP objections, Democrats needed near unanimity among their ranks, abortion remaining the biggest hurdle.
The Democratic caucus at the time had a significant number of members who opposed abortion, particularly those representing more conservative districts and states. In order to facilitate movement, House and Senate leaders agreed that the health bill should be “abortion-neutral,” meaning it would neither add to nor subtract from existing abortion restrictions. Even today there is disagreement about whether the law actually expands or contracts abortion rights.
At the time, Democratic sponsors of the bill were buffeted by appeals from women’s groups who wanted to make sure the bill did not change existing coverage of abortion in private health insurance; and from abortion opponents, led by the United States Conference of Catholic Bishops, who called the bill a major expansion of abortion rights.
The bill passed the House in 2009 only after inclusion of an amendment by Rep. Bart Stupak (D-Mich.), a longtime opponent of abortion. That bill included a government-sponsored health insurance plan that would have been available on all states’ exchanges. Stupak’s provision would have made the Hyde Amendment a permanent part of that plan. The amendment also banned federal premium subsidies for private health insurance plans that offered abortion, although it allowed for plan customers to purchase a rider with non-federal money to cover abortion services.
Eventually, the Senate bill dropped the government-sponsored plan, so no restrictions were necessary on the abortion issue. And it was the Senate plan that went forward to become law. Still, differences remained over how to ensure that subsidies provided by taxpayers did not go to private plans that covered abortions.
In the upper chamber, a compromise was ultimately reached by abortion-rights supporter Sen. Barbara Boxer (D-Calif.) and a Democratic senator who opposed abortion, Ben Nelson from Nebraska. Nelson was the final holdout on the bill, which needed all 60 Democrats in the Senate to overcome the unanimous GOP opposition. The Boxer-Nelson language was a softening of the Stupak amendment but still allowed states to prohibit plans in the ACA’s insurance marketplaces from covering abortion.
In addition, President Barack Obama agreed to issue an executive order intended to ensure no federal funds were used for abortions.
In the end, both sides came out unhappy. Abortion opponents wanted the Hyde Amendment guarantees in the actual legislation rather than the executive order. Abortion-rights backers say the effort constricted abortion coverage in private health plans.
And both sides are unhappy, still. According to the Guttmacher Institute, a reproductive health research group, 26 states have passed legislation restricting abortion coverage in any plan sold through the ACA’s insurance exchanges.
Another 11 states have passed laws restricting abortion coverage in all private insurance sold in the state. Nine of those states allow separate abortion riders to be sold, but no carriers offer such coverage in those marketplaces, according to a 2018 analysis by the Kaiser Family Foundation. (Kaiser Health News is an editorially independent program of the foundation.)
And three states — California, New York and Oregon — require nearly all insurance plans to provide abortion coverage, according to the National Women’s Law Center.
And, what’s at stake in the latest health bill?
The issue for 2018 is a bipartisan bill that seeks to stabilize the individual insurance market and the ACA’s health insurance exchanges by providing additional federal funding to offset some recent premium increases. Some options include restoring federal subsidies for insurers who cover out-of-pocket costs for very low-income customers and setting up a federal reinsurance pool to help insurers pay for very expensive patients.
But once again, the abortion debate threatens to block compromise.
Many Republicans are dubious about efforts to shore up the health law. They still hope its failure could lead to a repeal they were unable to accomplish in 2017.
Even some who say they are sympathetic to a legislative remedy want to add the permanent Hyde Amendment language that was left out of the final ACA, although included in Obama’s executive order.
That is “not negotiable for House Republicans,” a spokeswoman for House Speaker Paul Ryan (R-Wis.) said this month. The White House has also endorsed a permanent Hyde Amendment.
But Sen. Patty Murray (D-Wash.), who has been negotiating the insurance bill for the Democrats, calls any additional abortion restrictions “a complete non-starter” for Democrats.