Brilliant Abortion Strategy


Give the GOP its due. It is negotiating wisely and perhaps on the precipice of a major victory which would solidify its cultural base.

This gets complicated (at least for me), which reflects its strategic brilliance.

The Hyde Amendment, renewed annually, prohibits all federal funding (i.e, Medicare, but mostly Medicaid) for abortions except in the cases of rape or incest or for the life or health of the mother. That is insufficient for many abortion rights opponents, as we learned through the controversy over the Stupak Amendment to the Affordable Care Act. Although Stupak eventually was dropped, the Act included a provision mandating, as explained by factcheck.org

that any private insurance plans that cover abortion (and are sold through exchanges) must keep federal dollars separate from the private dollars paid by individual policyholders. Those buying plans on the exchange would send in a separate payment to cover abortion services, and coverage for abortions (other than in cases or rape or incest or danger to the mother’s life) would be paid for from a segregated pool of money that contains no federal funds.

Furthermore, the Senate bill — now law — allows states to prohibit policies sold on their exchanges from covering abortions, with the same exceptions. And it requires that at least one plan in state exchanges not include abortion coverage beyond federal limitations.

Still not good enough. So President Obama signed an Executive Order confirming that the language extends the Hyde prohibitions and applies them to the health insurance exchanges created by the Act.

In steps Representative Chris Smith, probably the most ardent abortion rights opponent in Congress, who represents a center-right congressional district in New Jersey. He introduced HR3 (copy here), the No Taxpayer Funding for Abortion Act. It aimed to make permanent the prohibition in Hyde and would (have), according to Talking Points Memo on February 1, provided that federal, or private insurance, funding for abortion in

those provisions would kick in only in cases of forcible rape, a distinction from other forms rape of that is largely undefined but seems to suggest that a rape that doesn't include violence wouldn't count. The bill would also limit the incest exemption to women under the age of 18 -- meaning a victim of incest who was legally allowed to vote wouldn't have her abortion covered by Medicaid and would likely have more limited access to private insurance than she does today.

The sky is falling! The sky is falling! Or so it seemed to abortion rights advocates, who justifiably believe that funding by either the federal government or the private sector should not be restricted to cases that meet a statutory definition of forcible rape in a particular jurisdiction. An avalanche of criticism from MoveOn.org, Emily's List, and liberals everywhere ensued. Typifying the outrage was Steph Sterling, a lawyer and senior adviser to the National Women's Law Center, who remarked "the bill takes us back to a time when just saying 'no' wasn't enough to qualify as rape."

But they missed the point, as this passage from from the TPM piece should have suggested:

Over the course of Friday and Monday, TPM reached out to pro-life groups and Democratic and Republican pro-life politicians -- some of whom have backed federal action on abortion with language similar to the House law, known as the "No Taxpayer Funding for Abortion Act" -- to talk about the new bill's language regarding "forcible rape." None responded, except Lipinski, who told TPM that he's willing to take another look at the controversial rape language.

Quickly, Representatives Smith, Lipinski, and no doubt many others of the 173 co-sponsors (163 Republicans, 10 Democrats) realized that seemingly placing their movement on the side of statutory rape would not qualify them for an award for "compassionate conservatism." By February 3, Smith would say the wording had been "misconstrued" (uh-huh) and announced

The use of the term 'forcible' was not intended to change the meaning of the time-tested protections and exceptions currently contained in the Hyde amendment....

To avoid any confusion and to expedite the effort to permanently prevent taxpayers from being complicit in abortion and abortion coverage, we are restoring the text to reflect the exceptions for rape and incest included in the Hyde amendment.

In walks the Protect Life Act (good, albeit subjective, description here), sponsored by Representative Joe Pitts (R-Pa.), a sponsor of the old Stupak Amendment, and Lipinski, an Illinois Democrat. (If you've already guessed that the Protect Life Act does not, you're right.) The key provision would prohibit any private insurance plan in the new health insurance marketplaces/exhanges from offering insurance coverage for abortion. The bill would permit states to allow insurers to refuse to offer basic health services including, but not limited to, assistance and supplies related to contraception, infertility, and sexually transmitted diseases. It could prevent anyone implementing the ACA- i.e., DHS and the state-based exchanges- from giving information about abortion services, inlcuding whether abortion care is covered in a particular insurance plan.

Current federal law permits any hospital receiving federal funds, or any individual health care provider, to refuse to provide abortion services if it/he/she objects to abortion on religious or moral grounds. If a requested abortion will not be performed by the hospital and the patient's life is in danger, the latter must be transferred to a facility which will perform the operation. Under terms of Pitts, however, refusal would be permitted on any grounds, rather than limiting it to religious or moral objections.

The provision which has caused the greatest consternation among abortion rights supporters and others concerned with life, however, permits the hospital refusing to provide abortion to avoid transferring the patient even if her life is in danger. Yesterday, Cenk Uygur on his MSNBC program explained

Hospitals that say hey, I don`t want to do an abortion for my conscious, can still turn away women if there is no emergency. But on this new bill, the requirement to treat women whose lives are in danger would go away. Hospitals that don`t want to terminate a pregnancy wouldn`t have to nor would they have to transfer the patient. So, if a woman needs an emergency abortion to save her life, tough luck.

Then an unfortunate exchange occurred between Uygur and his guest, Representative Nita Lowey (D-NY), an advocate of women's rights.

UYGUR: Yes. Viagra. See again, these pro-men, anti-women, I mean, you see a trend over this. So final question here, are you going to be able to stop this? How do we stop this portion of this bill from going forward?

LOWEY: I would expect that common sense will prevail and we will block this portion of the bill that most of the Republicans want to focus on jobs and not deny women basic rights and put their life in jeopardy. That`s really the issue and you said it very well. Thank you.

One wonders which is worse- the liberal host fixating on "this portion" of the bill or his guest, an ostensible abortion rights supporter, calling on "common sense (to) prevail" so that "we will block this portion of the bill."

The goalposts, yet again, have been moved. The GOP starts out with an extraordinarily conservative bill and alters it so that it's merely extremely conservative. The Hyde structure- expanded to restrict the ability of insuance companies to offer abortion coverage- will become permanently enshrined law. Health services which would cut the need, perceived or real, for abortion, would become curtailed. Information about a woman's right, or lack of right, to an abortion would be curbed. The power of a hospital- receiving public money- to refuse to provide to a patient a constitutionally-protected procedure would be expanded. (Try telling your boss that you refuse to perform a function of your job and your employment may be prematurely ended; unless, of course, it is to perform an abortion.)

And Nita Lowey- standing strong for women's rights- says that the bill should require the hospital to transfer the patient if failure to end the pregnancy might result in her death. All other provisions, presumably, just fine. The bill can be slightly modified, congressional Democrats can join in passing the legislation, the Democratic president can sign it, and we will have accomplished what no Republican president with a Republican congress has been able to- a curtailment of the right some of those Democrats (especially Mr. Obama) have assured the nation's voters they support. Reacting within minutes to the Uygur-Lowey conversation, Digby caught the mood perfectly, remarking

No bill should even come to the floor of the Senate. But with staunch pro-choicers like Lowey repeating the wingnut mantra "no federal funding for abortions" like a parrot, I think there's a fairly good chance that the House will pass a bill that quite a few Democratic Senators will jump to vote for since all the "bad things" have been taken out. All it will say is that "no federal funds will pay for abortion" --- effectively ending abortion as an insurable procedure. But hey, why not? Everyone agrees on that apparently. It was just the rape and death provisions that were objectionable and we pro-choice advocates fought for women and made sure they were taken out. Hurrah for us.

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