Cardinal: Senate Already Embraced Nelson Amendment

Cardinal Daniel DiNardo has an interesting take on the controversy over language restricting federal funding of abortion in health-care reform legislation.
The Senate rejected the Nelson amendment, which would have banned federal funding of abortions except in cases of rape and incest and where the mother’s life was in danger. Many in the Senate said the language goes too far.
But, in this Dec. 14 letter to members of the Senate, Cardinal DiNardo, chairman of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities, points out that the Senate actually approved the same concept of the Nelson amendment in other bills, and did so just recently.
Here is the full text of the cardinal’s letter:

Dear Senator:

As we have stated many times, the Catholic bishops of the United States strongly support
authentic reform of our ailing health care system – reform that will respect the life,
health, and consciences of everyone. We have especially focused on three moral criteria
for reform: respect for life and conscience; affordability for the poor; and access to much needed
basic health care for immigrants.

Thus far the Senate reform bill, in our view, has fallen short of the example set by the
House version of this legislation in each of these areas. But perhaps the most contentious
issue has been that of abortion coverage, with the Senate on December 8 voting to table
(set aside) an amendment by Senator Ben Nelson (D-NE) that was virtually identical to
language already overwhelmingly approved by the House on this issue.

The central argument against the Nelson amendment, voiced during floor debate by many
Senators, was that this amendment goes too far by barring federal subsidies to entire
health plans that include abortion coverage. The three-decades-long precedent of the
Hyde amendment and similar provisions governing all other federal health programs, it
was claimed, is this: Federal funds may not be used “directly” for an elective abortion,
but non-Federal funds such as private premium dollars may be used in the same health
plan for such abortions.1 The underlying health care reform bill was said to respect this
tradition by “segregating” funds with plans to allow “private” funding of abortion. It was
chiefly on the basis of this argument that the Nelson amendment was tabled….

However, yesterday’s overwhelming vote to approve the Consolidated Appropriations
Act creates a new situation. In that vote, almost all Democrats, including almost
every Senator who claimed the Nelson amendment’s policy goes too far, voted in
favor of that exact policy. For these Senators voted to retain the actual current
language of the Hyde amendment, and of the parallel provision governing abortion in the
Federal Employees Health Benefits Program – and that language clearly requires a policy
in all other federal health programs that is identical to that of the Nelson amendment.

Here is the language of the Nelson amendment that Senators claimed was new and

No funds authorized or appropriated by this Act (or an amendment made by this
Act) may be used to pay for any abortion or to cover any part of the costs of any
health plan that includes coverage of abortion.

Here is the Hyde amendment, governing all current programs funded by the Labor/HHS
appropriations bill, which the Senate just voted to reaffirm:

None of the funds appropriated in this Act, and none of the funds in any trust
fund to which funds are appropriated in this Act, shall be expended for any
abortion…. None of the funds appropriated in this Act, and none of the funds in
any trust fund to which funds are appropriated in this Act, shall be expended for
health benefits coverage that includes coverage of abortion…. The term “health
benefits coverage” means the package of services covered by a managed care
provider or organization pursuant to a contract or other arrangement.
(H.R. 3288 as approved by the Senate on December 13, Division D, sec. 508;
emphasis added)

The Hyde amendment states further that it does not prevent use of state, local or private
funds for abortions, as long as these are separate from the state matching funds that
combine with federal funds to purchase a benefits package. In other words, not only
federal funds, but other funds used to purchase the same package, may not pay for
elective abortions.

Here is the parallel provision governing the Federal Employees Health Benefits Program,
which the Senate also approved yesterday:

No funds appropriated by this Act shall be available to pay for an abortion, or
the administrative expenses in connection with any health plan under the
Federal employees health benefits program which provides any benefits or
coverage for abortions.
(H.R. 3288 as approved by the Senate on December 13, Division C, sec. 613;
emphasis added)

Neither of these longstanding provisions says anything about “segregating” private and
federal funds within a health plan or benefits package. Attempts to achieve such
segregation are irrelevant to current policy, which bars federal funds from being used for
any part of a package that covers elective abortions.

Literally the only substantive difference between these noncontroversial and widely
supported provisions and the Nelson amendment is that the latter explains at length that
(a) it does not prevent purchasers who do not receive federal subsidies from buying a
health plan including elective abortions, even on the Exchange created by the health care
reform bill, and (b) it does not prevent purchasers receiving federal subsidies from buying
separate supplemental abortion coverage with their own funds.

The Consolidated Appropriations Act also maintains important current laws protecting
conscience rights: The Hyde/Weldon amendment (Sec. 508 (d) of Division D), to prevent
governmental bodies from discriminating against health care providers that decline
involvement in abortion; and two provisions to respect moral and religious objections to
mandated contraceptive coverage (in the federal employees’ health program and in the
District of Columbia). The first of these is included in the House-passed health care
reform bill (Sec. 259 of H.R. 3962); the Senate bill does not yet include any of them.

From the outset of the health care reform debate, we have not sought to use this
legislation as a vehicle for advancing the pro-life cause – and we have urged others not to
use it to advance the pro-abortion cause. The current Senate bill fails to achieve this
balance. While its abortion language has been called a “compromise,” it is only a
compromise between current law and a broader policy on abortion funding, as it explicitly
authorizes the use of federal funds to subsidize health plans covering elective abortions
for the first time in history. Health care reform is too urgently needed to be placed at risk
by one lobbying group’s insistence on changing the law. Before the Senate considers
final votes on its health care reform legislation, please incorporate into this bill the
longstanding and widely supported policies of current law, acknowledged and reaffirmed
by the Senate itself only yesterday. Please give the American people health care reform
that respects the life, health and consciences of all.


Daniel Cardinal DiNardo

Archbishop of Galveston-Houston

Chairman, Committee on Pro-Life Activities

United States Conference of Catholic Bishops

1 No abortion provision at issue forbids funding abortions (or plans including abortion) when the mother’s
life is endangered or in cases of rape or incest; these exceptions are not at issue and will not be included in
quotes from the provisions. Abortions not covered by these exceptions are here called “elective” abortions.