Democrats Still Haven’t Fixed All the Abortion-Funding Problems in Their Reconciliation Bill

West Virginia Democratic senator Joe Manchin has called taxpayer funding of abortion a “red line” for him, and the most glaring example of this problem in the House Democrats’ reconciliation bill — a new “Medicaid-like” program missing the Hyde amendment — has been dropped from the bill.

Instead of creating a new program administered by the federal government in the twelve states that refused to expand traditional Medicaid, the $1.75 trillion bill would close the so-called “Medicaid gap” by making lower-income individuals in those states eligible for Obamacare plans that are virtually cost-free. But other problems remain in the bill.

As I explained the other day, elective abortions aren’t covered by Obamacare plans offered in these twelve states, but the reconciliation bill’s section regarding “family planning services” could require these new plans to cover abortions, unless abortion funding is prohibited. In the new 1,684-page reconciliation bill that Democrats released on Thursday, that section of the bill has been changed in a way that at least appears to attempt to exclude elective-abortion coverage — but actually fails to do so.

“We see the change that was made,” says Autumn Christensen of the Susan B. Anthony List. “However, it was not drafted in a way that prevents an abortion mandate because it references the Medicaid statute — which does allow for abortion — instead of referencing Medicaid appropriations, which do not allow for abortion funding.”

This issue is in the legislative weeds, but the point is important: The Hyde amendment, which prohibits Medicaid funding of abortion except in rare circumstances, must be attached each year to an appropriations bill that funds the program. The Hyde amendment is not permanently embedded in the underlying law that established Medicaid.*

“If we assume that this change was made with the intent of addressing the abortion problem, it falls short,” says Christensen. “But we look forward to a true solution.”

The bill that House Democrats unveiled on Thursday is not their final product, and negotiations are ongoing. But if the final bill isn’t scrubbed of its provisions that could fund abortion, Democrats will be setting themselves up for a fight over taxpayer funding of abortion on the Senate floor. There are also “public health” grants in the reconciliation bill that could fund abortion. “Clearly these funds are not covered by the Hyde amendment,” says Christensen.

The simplest way to ensure that the bill doesn’t fund abortion would be to explicitly include the text of the Hyde amendment in the bill — rather than cross-referencing legislation to which Hyde applies — but Congresswoman Pramila Jayapal has said Democrats think that including it would be a “political statement.” At the same time, Jayapal has (incorrectly) claimed that “none of the dollars” in the reconciliation bill would be spent on elective abortion. So there’s no reason to believe that a bill that actually ensures “none of the dollars” would be spent on abortion would lose the vote of Jayapal or any of her followers.

*Update: The Biden administration makes this very point that the statute authorizing Medicaid requires abortion coverage and only the appropriations bill funding Medicaid restricts taxpayer funding of abortion. Anne Marie Costello, Deputy Director for the Center for Medicaid and CHIP Services at the Centers for Medicare & Medicaid Services, explains the distinction between the Medicaid statute and Medicaid appropriations, as they relate to abortion funding, in a declaration filed in the case United States v. Texas—the case challenging the Texas Heartbeat Act.

Section 1303 of the Affordable Care Act also prohibits including abortion as an “essential benefit,” but the reconciliation bill notably does not add the aforementioned “family planning services” to that section of the Affordable Care Act.