Does Health Care Cover Abortion or Not? Fact Checking the Fact Checkers

Rape, Incest and Life of the Mother. Let's start with the most clear-cut issue. The House legislation would require that the public health care option government cover abortions in the cases of rape, incest or the life of the mother.* This is relatively non-controversial because even currently extant restrictions on federal funding for abortion (such as the Hyde Amendment) allow for this exception.

Can Cover vs. Must Cover vs. Probably Will Cover. When advocates claim that the "public plan" - a government-administered health care option -- does not cover abortion, they're being literally accurate... but slippery. The two main bills (so far) do not, in fact, require a public option to cover abortion. However, they don't prohibit abortion coverage either, instead leaving it up to the Secretary of Health and Human Services to decide, later, whether abortion would be included in a basic benefits package.

Pro-life activists say that if abortion can be covered, it will be covered. It's certainly not an unreasonable prediction, given that the Secretary and the President are both pro-choice (though neither side talks about the flipside: when President Palin is in the White House she could reverse the policy through a simple executive order).

I don't know why abortion opponents can't just say, "It's likely that abortion will be covered." That's not quite as dramatic as saying that heartbreakingly vulnerable seniors will have to forgo surgery while being "forced to pay for abortions" (as a Family Research Council ad claimed) but it has the advantage of being, you know, true.

(Memo to the White House press corps: Please ask President Obama, Robert Gibbs or Kathleen Sebelius the following question: "The health care legislation gives the HHS Secretary the authority to decide whether abortion is covered. Will you commit right now that abortion will not be covered?")

Abortion and the Public Option. Ok, for argument sake, let's say it's a year from now, health care reform is the law of the land and the Secretary of HHS does decide that the public option must cover abortion. Would that then mean that the federal government was subsidizing abortion?

Not necessarily, say many health care advocates. How could that be? Because even though it's called a "public plan," citizens would be paying premiums for their coverage. In theory, then, abortion services would be paid for just by private premiums, not by public subsidies.

Anti-abortion advocates argue that in this case premiums are akin to taxes - money goes from a citizen's pocket into the U.S. Treasury -- so if premium dollars are paying for abortion it's morally equivalent to tax dollars paying for abortion.

Democrats have proposed additional provisions to prevent funds from being used for abortion (see below) but on this point, I think the pro-lifers again have the better case. There would be large federal outlays required to set up a public option, the federal government would administer it, and there may possibly be ongoing federal subsidies. If the public option were to include abortion, it would be hard to argue that there was no taxpayer support of abortion resulting from that.

(There may be ways around this problem, by the way. In this space, I floated the idea of having abortion not covered in the basic plan but giving consumers the ability to purchase, with their own money, a rider that does cover abortion. Bill Donohue of the conservative Catholic League said the idea "could break the deadlock in Catholic circles" and Richard Doerflinger of the United States Conferences of Catholic Bishops said it was "such a crazy idea that it might just work. " I haven't heard much pro-choice reaction yet.)

Abortion and Private Insurance. Though the public option has gotten the most attention, another part of the bill is likely to affect many more people. Those who couldn't afford insurance would get "affordability credits" to help. They'd then buy insurance in a new health insurance "exchange," a sort of insurance supermall set up by the government but consisting mostly of private plans.

Under the bills circulating in the House, the government does not write a check to a doctor, including, say, an abortion provider (as some pro-life groups have claimed). It writes a check to an insurance company to help pay for an entire insurance plan, some of which would cover abortion, some of which wouldn't.

Here's the riddle: would that count as providing a direct subsidy for abortion (prohibited under current law) or indirect support (allowed under current law)?

The government isn't paying for abortion but it is providing dollars, some of which will bounce from insurance company HQ to a hospital and eventually into the pockets of an abortion provider.

One way of looking at this is not whether this is good or bad but whether it mirrors the status quo or not, since both sides have said they're willing to preserve the current rules (for now).

Alas, that approach doesn't determine much, as both sides can cite legitimate examples proving their point.

To prove that the government currently errs on the side of providing no subsidies (direct or indirect), prolifers point to the Federal Employee Health Benefits Plan, the health insurance system for government employees. In that system, plans covering abortion are simply not offered (except for a few years in the early 1990s when Democrats controlled the White House and Congress). Currently, if you're a federal employee and you want an abortion, you have to pay for it out of pocket or purchase a supplemental insurance plan from outside the federal system.

To prove that the government currently does allow for indirect subsidies, pro-choice groups point to a different example: Medicaid, the federal health care program for the poor. The federal government won't pay for most abortions in Medicaid, but it does allow states to throw in money - so, as a practical matter, poor women in 17 states are able to get Medicaid-financed abortions.

In addition, it's worth noting that the health care plan offered by Republican nominee John McCain during the 2008 campaign would have covered abortion indirectly, too. He would have offered a health care tax credit to citizens who could then buy insurance coverage of their choosing, including plans that covered abortions. In some cases, a check would have travelled from Uncle Sam to John Q. Public to Jack Q. Abortionist.

Bookkeeping Solutions/Shams. Recognizing that this subsidy plan could be perceived as indirectly subsidizing abortion, Rep. Lois Capps of California proposed in the House Energy and Commerce Committee a few ideas she characterized as "common ground" safeguards.

First, she said, how about if we make sure that in each region everyone has access to at least one plans covers abortion and one that doesn't. That way, someone who is pro-life would always be able to buy a plan that doesn't cover abortion and feel that their premiums aren't indirectly subsidizing someone who is.

This idea backfired. Seeing this policy glass as half empty rather than half full, the National Right to Life Committee opposed it on the ground that it "mandates that at least one private insurance plan must offer unlimited abortion coverage."

Capps had a second idea for trying to make it seem that taxpayer dollars weren't subsidizing abortion too directly. This idea would apply to both the public option (should it exist) and to federal subsidies for people buying private insurance.

In a section entitled, "Prohibition of Use of Public Funds for Abortion Coverage," she proposed that insurance companies set up two separate accounts - one filled with money from the federal government, and one with money from consumer premiums. When a consumer sent in her premium check it would go into the premium account; when the federal government kicked in its share, the money would land in a different pile. Insurance companies would then have to guarantee that abortions would be paid for only by money in the account made up of premium dollars, not from the account filled with taxpayer dollars.

In effect, Capps was proposing a situation in which abortion would be "covered" -- i.e. available to consumers -- but not subsidized by taxpayer dollars. Note that when Obama made his statement to religious groups, he didn't say abortion wasn't covered; he said it wasn't funded by government.

The National Right to Life Committee called this approach "a mere bookkeeping sham."

Maybe -- but if so, it's a sham in the way that these sorts of segregation-of-funds bookkeeping schemes often are. For instance, the government provides funding to Planned Parenthood for maternal health care but says it can't use any of the money to pay for abortions.* Pro-lifers have long argued that this, too, is a sham. Perhaps but it is currently accepted by Congress, undercutting the pro-lifer argument that the Capps's approach veers sharply away from the status quo into a radical new pro-choice direction.

The bottom line: the Capps amendment prohibits direct taxpayer subsidy of abortion in these plans, and allows indirect subsidy. That merely leads to the highly subjective question: is it indirect enough?

My view: if the Capps amendment is off, it's by a matter of inches or feet, not miles (and there are ways of further tightening it up). So when pro-life forces claim that, as a result of the "affordability credits," taxpayers are paying for abortion, they're being hyperbolic at best, deceptive at worst.

We often think of abortion as a black and white issue. But when it comes to the question of whether health care reform bills "cover" or provide "taxpayer support for" abortion, there are many shades of gray. As of now, neither side is entirely telling the truth about what the bills do; on some aspects, Obama and his allies have misled, on others pro-lifers have. More important, some of this does not involve matters of "fact" or "truth" or "lies" but rather subjective judgment calls, a land where ideologues don't function well but legislators must.

Also published on The Wall Street Journal Online. For more of Steve Waldman's WSJ.com column, Heaven and Earth, click here.

*Clarifications: In the rape and incest section, I originally wrote that rape and incest abortions would be covered under the private plans in the exchanges. That was incorrect. They would be covered under the public option, though. I've changed the text to reflect that. Lower down, I deleted a sentence that was confusing related to Planned Parenthood bookkeeping.