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The Capps Amendment: A Pro-Life Analysis


During the July 30th House Energy and Commerce Committee mark-up, Rep. Joe Pitts (R-PA.) and Rep. Bart Stupak (D-MI) offered amendments to H.R. 3200 that would have prohibited abortion funding and coverage in the House health care reform bill.  These amendments were defeated.

Instead, the Committee approved an amendment offered by Rep. Lois Capps (D-CA) by a vote of 30-28. Supporters of the Capps amendment claim that it is a “compromise” amendment on abortion.  Instead, it creates an explicit mandate for abortion funding and coverage.

Provisions Relating to Abortion Funding and Coverage

[Note: The abortion funding and coverage provisions in the amendment are partially modeled after Medicaid’s abortion funding restrictions established by the Hyde Amendment.[1] Abortions that are “Hyde-prohibited” (currently every abortion except in cases of rape, incest, and the life of the mother) are treated differently than abortions that are “Hyde-permitted” (currently in cases of rape, incest, and life of the mother).  In other words, “Hyde-prohibited” abortions are those that the federal government currently does not pay for under Medicaid; “Hyde-permitted” abortions are those that fall under the limited circumstances that Medicaid will cover.]

  • The Capps Amendment specifies that the Health Benefits Advisory Committee, created by H.R. 3200, will not mandate any abortions as a “minimum benefit” for private health insurance plans. Plans are neither required nor prohibited from providing abortion coverage in order to participate in the Health Insurance Exchange created by the bill.

(Important point: plans that provide abortion coverage will be part of the Exchange; however, plans will not be forced to provide abortion coverage.)

  • The public health option will provide “Hyde-permitted” abortion coverage.  The Secretary of the Department of Health and Human Services (“HHS”) can decide whether to offer coverage for “Hyde-prohibited” abortions.

(Two important points: (a) Under this amendment, Secretary Kathleen Sebelius, who is on record against any limitations on abortion, can decide to allow government coverage of abortions that are not allowed under the Hyde Amendment (because the Hyde Amendment does not apply to the provisions in H.R. 3200); (b) Even if Secretary Sebelius does not exercise her discretion to allow government coverage of all abortions, if the Hyde Amendment, which lapses if not renewed yearly, is ever eliminated from HHS Appropriations, all abortions would automatically become “Hyde-permitted” abortions, and would therefore be covered by the public plan.)

  • At least one private plan in every premium rating area must provide coverage for “Hyde-permitted” and “Hyde-prohibited” abortions (i.e., all abortions).

(Important point: This means that for the first time, the federal government will ensure that there is at least one private insurance plan in every premium rating area that covers all abortions.)

  • At least one private plan in every premium rating area must not cover “Hyde-prohibited” abortions.  It may also refuse to cover “Hyde-permitted” abortions.
  • Affordability credits (government subsidies to help people pay their insurance premiums who are not eligible for Medicaid and have an annual family income of up to 400% of the poverty level) cannot be used to directly pay for abortions which are “Hyde-prohibited.”

(Important point: This does not change the fact that federal dollars will be paid to private health care plans that cover abortion.)

Other Provisions in the Capps Amendment

  • Preemption of Existing Laws:  The Capps Amendment provides that nothing in H.R. 3200 will “preempt or otherwise have any effect on State laws regarding the prohibition of (or requirement of) coverage, funding, or procedural requirements on abortions, including parental notification or consent for the performance of abortion on a minor.”
  • Conscience Protection: The Capps Amendment prohibits health insurance plans participating in the Exchange from discriminating “against any individual health care providers or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.”

(Important point: This provision protects the right of conscience for pro-life health care providers; however, it protects abortion providers as well.  In other words, pro-life insurance companies would be required to contract, against their conscience, with abortion providers.)


The Capps Amendment is not a compromise.  In fact, it mandates abortion coverage and allows federal funding to go to private insurance plans that cover abortion.  The Capps Amendment also fails to provide right of conscience protection for pro-life insurance companies.  This Amendment would create a radical departure from existing law, in that the government would subsidize health insurance plans that pay for abortion.  It is critically important that the health care reform bills before Congress include explicit language that truly prohibits abortion funding and coverage, and includes comprehensive conscience protection.

[1] The Hyde amendment prevents federal funds appropriated through the HHS Appropriations bill from being used to pay for most abortions (there are currently exceptions for rape, incest, and the life of the mother).  The Hyde Amendment is not permanent law; in fact, on several occasions Congress has broadened or narrowed the categories of “specified circumstances” where abortion funding is allowed.  Congress could expand the exceptions much farther or simply drop the amendment entirely.