Last week I argued in my column that, even though I strongly oppose the Stupak amendment because I am pro-choice, if things come down to a bad choice -- a national health care bill with the Stupak language -- or a worse choice -- no health care bill at all this year -- I would favor a vote for the Democratic health care plan this year, even with the offensive Stupak amendment.
The column drew a strong adverse response from many of my pro-choice friends. They argued it was too soon to give in to the Stupak-Pitts amendment as is and that the Senate and the conference committee might still find a compromise that most of the 64 Democrats who voted for the Stupak amendment, including perhaps Mr. Stupak himself, could support.
After listening to these callers and doing more research, I have concluded they are right. There is an opportunity for compromise.
Let's start with the one thing everyone agrees on: The Hyde Amendment status quo should not be disturbed. Hyde was passed in 1977. It bars any federal funds, direct or indirect, from funding abortions. It has been reauthorized every year through the appropriations process. As President Barack Obama stated: "We're not looking to change what is the principle that has been in place for a very long time, which is federal dollars are not used to subsidize abortions ... " And Stupak stated on the floor that all his amendment was trying to do was "apply the Hyde Amendment."
The following compromise, I believe, is consistent with this Hyde-status-quo principle:
1. Pro-choice supporters argue that the government-run "public option" plan should include abortion coverage so long as women use private funds to pay for the incremental cost of the abortion. But Stupak supporters point out that under the public option, the secretary of Health and Human Services is the ultimate payer to physicians who perform abortions and who receive checks drawn from a federal account. To them, this directly violates the Hyde Amendment. So it certainly appears that if there is going to be a compromise to obtain the support of at least a majority of the 64 Democrats needed to win a majority vote in the House for national healthcare, pro-choice supporters will probably have to give up a public option that includes abortion coverage.
2. However, Stupak amendment supporters should support a proposal that requires that at least one insurance policy on a state exchange include abortion coverage so long as another, identical policy does not include abortion coverage. The only difference between this and the language of Sec. 265(c)(3) of the Stupak amendment is the word "require." The reason a requirement is necessary is that the House healthcare plan mandates that women who are uninsured or who are not otherwise covered by federally provided insurance or by their employers purchase their insurance on state exchanges.
Thus, for such women who must buy their health insurance on a state exchange, if at least one policy on the exchange isn't required to offer abortion coverage, that would mean the Hyde status quo would be changed by the Stupak amendment, since women currently with policies covering abortion would have to give up such coverage. The requirement proposed here does not involve expenditure of federal funds, and thus does not contradict Hyde in any way. Mr. Stupak and his colleagues, if they truly mean they are committed to the Hyde-status-quo principle, should support this proposal -- in return for pro-choice supporters giving up on a public option with abortion coverage.
If this doesn't fly with Stupak supporters, then they will prove that their agenda is not about preserving the Hyde status quo, but rather, to make it more difficult for women to obtain an abortion under the new health care system, i.e., to go beyond Hyde. So be it. But they should at least admit that they don't really mean what they say.
I hope most of those Democrats voting for Stupak, however, will see this compromise as consistent with the Hyde status quo and support it.
Like all good compromises, these ideas could make both sides equally happy and unhappy. If so, it will mean the abortion issue is taken out of the equation and all Democrats (and hopefully some Republicans) can celebrate the passage of the grand aspiration of the Democratic Party going back more than six decades: enactment of a universal, essentially privately based health insurance system with mandatory insurance coverage for all, regardless of pre-existing condition, age or health status.
At long last.
This piece appeared today, November 19, 2009, in Mr. Davis's regular weekly column in The Hill newspaper, "Politics and Counsel."
Davis, a Washington lawyer and former special counsel to President Clinton from 1996-98, served as a member of President George W. Bush's Privacy and Civil Liberties Oversight Board in 2005-06. He is the author of Scandal: How 'Gotcha' Politics is Destroying America.