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Summary of Nelson-Hatch-Casey Amendment and Remaining Conscience Concerns

On Monday, Senators Ben Nelson (D-NE), Orrin Hatch (R-UT), and Robert Casey (D-PA) offered an amendment to the Senate health care reform bill that would ensure that insurance plans are not forced by the government to cover abortions, and would prohibit federal funding for elective abortions and for insurance plans that cover elective abortions.  This amendment could receive a vote as early as today.

Even if the Senate passes the Nelson-Hatch-Casey amendment, which adequately prohibits both federal funding of abortion and any mandates on insurance plans to provide abortion coverage, the Senate health care reform bill fails to provide sufficient protection for the right of conscience.  The Senate must add language mirroring Section 259 of H.R. 3962, which prohibits government entities from discriminating against health care providers on the basis that they do not participate in abortions.

Below is an analysis of the Nelson-Hatch-Casey amendment.  Please also see our analysis of the Stupak-Pitts amendment to H.R. 3962 and our comparison of the Stupak-Pitts amendment to the Hyde amendment.

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The Nelson-Hatch-Casey amendment includes the same prohibitions on federal funding of elective abortions and insurance plans that cover elective abortions added to H.R. 3962 through the Stupak-Pitts amendment.  The Nelson-Hatch-Casey amendment, like the Stupak-Pitts amendment, mirrors the principles on abortion coverage and funding found in existing federal law.

The Nelson-Hatch-Casey amendment strikes page 116, line 15 through page 123, line 15, removing the entire section that mirrors the pro-abortion Capps amendment from the House Energy and Commerce Committee mark-up.

In place of the stricken language, the amendment does the following:

  • Provides that nothing in this act or an amendment made by this act shall be construed to require any health plan to provide coverage for abortion or to allow the Secretary or “any other person or entity implementing this Act” to require such coverage. This provision replaces language in the underlying bill that prohibits any “qualifying health plan” from being required to cover abortions as part of its “essential health benefits,” with language that protects all private health plans from being required to cover abortions. See Sec. (a)(1).
  • Prohibits the Secretary of the Department of Health and Human Services from providing coverage of abortion in the community health insurance option except where federal funding of abortion is allowed under section (b)(1) (in cases of rape, incest, or the life of the mother).  Similarly, the Stupak-Pitts amendment struck the provision in H.R. 3962 that allowed the Secretary to include elective abortion coverage in the public option, but allows federal funds to pay for abortions in the same cases where federal funding is permitted in section (b)(1) of this amendment (in cases of rape, incest, or the life of the mother).  See Sec. (a)(2); Stupak-Pitts Amdt. Page 1 and Sec. 265(a).
  • Forbids any exchange-participating plan from discriminating against a provider because of unwillingness to participate in abortions. This provision replaces language in the underlying bill which would have failed to protect private insurance companies who do not want to contract with abortion providers.  The same change was accomplished through a strike in the Stupak-Pitts amendment.  It is important to note, however, that the Nelson-Hatch-Casey amendment does not include the strong conscience protection found in H.R. 3962 and the Hyde-Weldon amendment added annually to the Labor, Health and Human Services appropriations bill.  Even with the inclusion of this provision, the Senate bill lacks sufficient conscience protection.  See Sec. (a)(3); Stupak-Pitts Amdt. Page 3.
  • Prohibits the use of federal funds for abortions or to subsidize plans that cover abortions except in cases of rape, incest, or life of the mother. This provision is effectively identical to both the Stupak-Pitts amendment and the Hyde amendment. See Sec. (b)(1); Stupak-Pitts Amdt. Sec. 265(a); Hyde Amdt. Sec. 507, 508 (1-2).
  • Expressly provides that it does not prohibit a non-federal entity (such as a State) from purchasing separate supplemental coverage for elective abortions or a plan that covers such abortion as long as no funds authorized or appropriated by this act are used and such coverage or plan is not purchased using: (1) individual premium payments required for a qualified health plan offered through the Exchange towards which an affordability credit is applied, or (2) other non-Federal funds required to receive a Federal payment, including State’s or locality’s contribution of Medicaid matching funds.  This provision is effectively identical to both the Stupak-Pitts amendment and the Hyde amendment.  See Sec. (b)(2); Stupak-Pitts Amdt. Sec. 265(b); Hyde Amdt. Sec. 508(b).
  • Expressly provides that nothing prohibits a non-federal health insurance issuer which offers a qualified health plan in the exchange from offering separate supplemental elective abortion coverage or a plan that covers such abortions so long as premiums for such supplemental coverage or plan are paid entirely with funds not authorized or appropriated by this act, administrative costs and all services offered through it are paid strictly with such premiums, and the insurer that offers a plan with elective abortion coverage in the Exchange also offers an identical plan that does not include elective abortion coverage.  Again, this section effectively mirrors the Stupak-Pitts amendment and the Hyde amendment.  See Sec. (b)(3); Stupak-Pitts Amdt. Sec. 265(c); Hyde Amdt. Sec. 508(c).