Affordale Care Act

KS1132

Case Number 2039.0

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Man on a Wire

Bart Stupak Walks a Tight Line between Obamacare & Abortion

In mid-March 2010—the week before the final Congressional vote on Obamacare—Bart Stupak strove to keep

his footing atop a teetering political powder keg. A Democratic Congressman from Michigan’s Upper Peninsula,

Stupak had long been a dedicated advocate for healthcare reform. He had also been a lifelong opponent of abor-

tion, as were the majority of voters in his rural, largely Catholic district. As the Obamacare debate wound to a

close, Stupak came under intense pressure to choose between these two deeply felt values.

The battle over the abortion question had surfaced repeatedly in the messy, contentious process of drafting

the Patient Protection & Affordable Care Act, but as the U.S. House of Representatives neared its final, razor-close

vote on the bill on March 21, 2010, the issue remained unresolved. With the fate of Obamacare hanging by a

thread, the Democratic leadership pressed Stupak and his small group of pro-life House Democrats to abandon

their controversial abortion stance and deliver their critically needed votes to pass the ACA. At the same time, Stu-

pak’s traditional pro-life and Catholic supporters doubled-down on demands that he and his group hold the line,

even if it meant dealing the death blow to health reform. Anti-Obamacare Republicans, meantime, maneuvered

around the edges, seeking to leverage the abortion issue in a last-ditch effort to kill the bill.

With the stakes high and emotions at a fever pitch, Stupak’s office received as many as 1,500 hate letters and

emails each day, a steady stream of angry phone calls, and death threats so serious, the Congressman and his fami-

ly were provided round-the-clock police protection. Reviled by one-time colleagues on both sides of the issue, Stu-

pak—reluctant front man in a battle he had never wanted, but felt honor-bound to wage—was determined to

keep a steady hand on the tiller, despite the tempest raging around him. But at the personal level he was losing

sleep, and profoundly conflicted about what to do.

Bart Stupak and the Upper Peninsula

By 2010, Bart Stupak was in the midst of his ninth consecutive term as the representative of Michigan’s Dis-

trict 1, a lightly populated rural district so vast, it covered two time zones and included 1,600 miles of shoreline on

three of the Great Lakes. The district had been struggling economically for several decades. The once-dominant

mining industry had all but vanished. There were still jobs in logging and auto parts manufacturing, and tourism

was on the rise, but unemployment on the Upper Peninsula was high, even by Michigan standards. (At 14.7 per-

cent, the unemployment rate in Michigan led the nation.) The self-named Yoopers of the Upper Peninsula were

known for a spirit of rugged independence. They were pro-union but socially conservative, opposing abortion and

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HKS Case Program 2 of 23 Case Number 2039.0

supporting gun rights. A classic swing area, the district voted for Bill Clinton in 1992 and 1996, George Bush in 2000

and 2004, and Barack Obama in 2008. Before Stupak’s election to the House, in 1992, the district had, for 36 years,

been represented by Republicans.

With long family roots in the Upper Peninsula, where he grew up and raised his own family, Stupak prided

himself on an intimate knowledge of the area: “I know that district frontwards, backwards, everything in be-

tween.” 1 Like many of his fellow residents, he was a pro-life Catholic and a hunter who generally opposed gun con-

trol laws. In other ways, however, Stupak tended to be more liberal than his district. Though often assumed by

outsiders to be a conservative “Blue Dog” Democrat, a Washington Post analysis showed that, between 2002 and

2010, Stupak voted with the party between 90 and 96 percent of the time. 2 “I’m not a Blue Dog, a Yellow Dog, or a

stray dog,” Stupak liked to say. “I’m just a plain old Democrat.” 3

While Stupak mostly stayed close to his district and its interests, he was not afraid to depart from his constit-

uents’ wishes when he deemed it necessary. “An easy vote is when the goals of the country and your district are

the same,” Stupak said. “The hard thing is when you see it’s best for the country to move forward, but the district

isn’t going with you.” For example, though generally a supporter of gun rights, Stupak voted in 1999 to close the

so-called “gun show loophole,” requiring background checks for firearms sales from unauthorized dealers. 4 Stupak

paid a price for his vote at home. His constituents “were madder than hell at me,” he recalled. The vote also won

him the enduring enmity of the National Rifle Association, a one-time Stupak supporter. Stupak took another polit-

ically risky stand in 2002 when he joined 126 House Democrats to vote against the Iraq war. 5 That was, for Stupak,

a vote of conscience and he did not waver. “And we were proved right over time,” he added. But back home, “the

editorials were just unmerciful on me,” Stupak said. “They said it was people like me who lost Vietnam.”

Stupak’s support for healthcare reform had been consistent through the years. “Every two years, I campaigned

for healthcare. The Republicans just railed on me, but it’s something I truly believe in,” he said. In 1993, he had

toured his district, promoting Bill and Hillary Clintons’ controversial and doomed health reform proposal. And in

2009, as chair of Oversight and Investigations, a subcommittee of the House Energy and Commerce Committee,

Stupak led a series of hearings about health insurance problems—inadequate options for long-term care, for ex-

Unless otherwise noted, all quotations from Bart Stupak were drawn from an interview conducted with Stupak December 16, 2014 in Washington D.C. by Pamela Varley and Christopher Robichaud. 2

The U.S. Congress Votes Database, Washington Post, http://projects.washingtonpost.com/congress/114/, retrieved January 25, 2015. 3

The Blue Dogs were an official caucus within the U.S. House of Representatives. They were generally more conservative than their Democratic counterparts, especially with respect to reducing the deficit and reining in entitlement spending. “Yellow Dog” was a more informal term, referring to Southern Democrats so loyal, they’d rather vote for a “yellow dog” on the Democratic ticket than vote Republican. 4

The measure, which failed, had been proposed shortly after it came to light that the gunmen who carried out the Columbine massacre had gotten their weapons via this loophole. “Gun Control: What Stupak Got Right,” by Suzy Khimm, Mother Jones, April 14, 2010, http://www.motherjones.com/mojo/2010/04/gun-control-what-stupak-got-right , retrieved January 15, 2015. 5

U.S. Congress Votes Database, Washington Post, HJ RES 114, To Authorize the Use of United States Armed Forces Against Iraq, October 10, 2002, House of Representatives, Voting yes: 215 Republicans & 81 Democrats, Voting no: 127 Democrats & 6 Re- publicans, http://projects.washingtonpost.com/congress/107/house/2/votes/455/, retrieved January 15, 2015.

http://projects.washingtonpost.com/congress/114/

http://www.motherjones.com/mojo/2010/04/gun-control-what-stupak-got-right

http://projects.washingtonpost.com/congress/107/house/2/votes/455/

HKS Case Program 3 of 23 Case Number 2039.0

ample; issues for small businesses; and the practice, by some insurance firms, of rescinding a person’s health policy

once s/he became sick.

Stupak’s support for healthcare reform met a mixed response in the Upper Peninsula. “They don’t want gov-

ernment telling them what to do,” Stupak said. But the Congressman was good at boiling a complex piece of legis-

lation down to its essentials. “I can sell healthcare anywhere,” he said. And, if Stupak’s constituents sometimes

argued politics with the Congressman, more than 90 percent knew him by name. In the final analysis, they re-

turned him to Congress every two years with comfortable margins.

Developing Obamacare: A Quick Overview

The process of writing and enacting the Affordable Care Act was famously messy and contentious. With newly

elected Barack Obama in the White House, and majorities in both the House and Senate, the Democrats were, on

the face of it, well-placed in 2009 to move forward on the party’s longtime health reform agenda. Determined not

to repeat the mistakes of the Clinton Administration, Obama announced that he would not present Congress with

a draft bill, but would ask the Democratic leaders in both houses to develop a bill themselves. Early on, there were

efforts at working across the aisle to craft a bipartisan bill, but by the fall of 2009, the Democrats concluded that

the two parties were too far apart on first principles to make such negotiations fruitful. The decision to cut loose

the Republicans and rely only on the Democrats to pass the bill came with its own problems, however. If the bill

were to be passed by Democrats alone, the party could afford very few defectors—and, in fact, there were wide-

ranging views within the party about what the bill should and should not say. [See Exhibit 1.]

The established process by which Congress enacted a new law was for each legislative chamber to develop its

own version of the bill through a process of committee review and markup followed by discussion and vote by the

chamber as a whole. After that, a bicameral conference committee would reconcile differences in the House and

Senate versions of the bill. The final bill would receive a last vote of approval from the House and Senate, respec-

tively, and the President would sign it into law.

In the summer and fall of 2009, the House and Senate each set about the task of writing a draft healthcare bill.

But there were important differences in the rules governing the two chambers, as well as different political dynam-

ics at play.

Dynamics in the Senate. Unlike the House—where the rules governing consideration of the health reform bill

were determined by the powerful Rules Committee—debate in the Senate was unlimited unless a 60-person “su-

permajority” voted to invoke cloture, limiting debate to 30 hours. Without cloture, any controversial piece of legis-

lation could effectively be blocked from coming to a vote by process of unending discussion, or filibuster, by its

opponents. This meant that the Democrats needed 60 votes in the Senate in order to pass the Affordable Care Act.

In fact, in 2009, the Democrats held 58 seats, but two independents—Joe Lieberman (CT) and Bernie Sanders

(VT)—caucused with the Democrats. If every Democrat and the two independents voted in favor, the Democrats

could just barely pass a health reform bill without the help of the Republicans. But the need for every vote gave

the most conservative members of the Democratic Caucus—Lieberman and several Democratic Senators—great

leverage to shape the bill.

HKS Case Program 4 of 23 Case Number 2039.0

Dynamics in the House. The House had a more comfortable Democratic majority—258 out of 435—and need-

ed only a simple majority to pass the bill: 218. But the ideological range in the House—for both Democrats and

Republicans—was far wider than in the Senate. “[T]here is a big difference in the cultures of the House and the

Senate,” wrote Senator Tom Daschle (D-SD) in his book about Obamacare, Getting it Done. “In the House, the at-

mosphere is much more polarized and heated, because most of the members represent districts that are carefully

drawn so that their voters are either mostly Democrats or mostly Republicans, leaving them with no incentive to

do anything but please their base.” 6

Members of the House were therefore often reluctant to vote in ways that would be unpopular in their home

districts—and especially reluctant to make such votes unless they were absolutely necessary. House members

talked of being “BTU’d,” a term invented during Bill Clinton’s presidency when the House, at Clinton’s urging,

passed a budget bill that included a BTU tax, an energy tax based on the heat content of fuels. It was a politically

unpopular tax that would have affected many middle-class people. It was dropped from the final version of the bill,

when the Senate refused to accept it. But this made many House Democrats angry. They had made the political

sacrifice of supporting an unpopular tax—and it had all come to nothing. 7

The progressive Democrats tended to be to the left of the Senate Democrats. But of particular concern to the

Democratic leadership in 2009-2010 were 52 House Democrats in the Blue Dog Caucus, who were more fiscally

conservative than their counterparts and more leery of an expanded role for the federal government. The House

could potentially pass a bill without the help of the Republicans, but it could not pass a bill without at least some of

the Blue Dogs and some of the 70 Democratic members of the Bipartisan Congressional Pro-Life Caucus, 8 co-

chaired, at the time, by Bart Stupak.

The Truce on Abortion Policy

In the spring and early summer of 2009, Stupak and other pro-life legislators began to see signs that Con-

gress’s 30-year truce on the controversial issue of abortion might be in jeopardy. It was not a truce that either side

had ever loved, but it had allowed Congress to function and to provide the annual federal budget allocations

needed for health related expenses. In particular, Stupak worried that—through the vehicle of health reform—pro-

choice Democrats might seek to alter the terms of the abortion truce.

Roe v. Wade. The central element in the nation’s existing abortion policy was Roe v. Wade, the historic 1973

Supreme Court decision, which had struck a blow for abortion rights by concluding that the constitutional right to

privacy guaranteed a woman the right to choose abortion without legal restriction, at least in the early months of

pregnancy. (Late pregnancy abortions were subject to more restrictions.)

Getting it Done: How Obama and Congress Finally Broke the Stalemate to Make Way for Healthcare Reform, by Senator Tom Daschle with David Nather, Thomas Dunne Books, St. Martin’s Press, New York, 2010, p. 152. 7

Ibid., p. 189. 8

In all, there were 200 members of the Bipartisan Congressional Pro-life Caucus—130 Republicans and 70 Democrats, accord- ing to Stupak. The caucus did not make its membership list public, however, and some caucus members were stricter than oth- ers about voting in accord with the pro-life lobby.

HKS Case Program 5 of 23 Case Number 2039.0

Hyde Amendment. In 1977, Congress had created the Hyde Amendment, a legislative provision that—while

not a permanent law—was, through accepted practice, annually attached as a rider to several healthcare appro-

priations; it barred the use of federal funds to pay for abortions except in the case of rape, incest, or danger to the

life of the mother. The Hyde Amendment primarily affected Medicaid, the joint federal-state program that fi-

nanced healthcare service to eligible poor Americans. Federal funding for abortion, except in these extreme cases,

was also banned for military personnel and their dependents under TRICARE; for federal employees and their de-

pendents under the Federal Employees Health Benefits Program; for American Indians and Alaskan Natives under

the Indian Health Service; for women in federal prison; and for Peace Corps volunteers. From 1977 to 2009, such

riders had been approved every year, except for a two-year period during the Clinton Administration (1993-1994).

State purview. Notwithstanding the Supreme Court ruling and the Hyde Amendment restrictions, there was,

in reality, wide variation in abortion law and policy from state to state. For example, Medicaid was jointly funded

by federal and state appropriations. While the Hyde Amendment prevented federal Medicaid funds from being

used to fund abortions, state Medicaid funds could be used to fund abortions, at the discretion of the state. As of

2009, 17 states paid for Medicaid abortions with state funds. In addition, states had the right to restrict abortion

access in a number of ways, and many states did so. Nine states, for example, prohibited private health insurance

plans from including abortion coverage except when the life of the mother was in danger. (In these states, women

were permitted to purchase separate riders providing abortion coverage at an additional cost, if the insurers chose

to offer such riders.) Many states outlawed abortions after a specified point in the pregnancy (most often, fetal

viability—but, with advances in medical technology, there were differing views of how far into a pregnancy that

point was). Many states permitted healthcare providers and healthcare institutions to refuse to perform abortions,

as an exercise of conscience. Many mandated counseling, waiting periods, and/or parental consent for minors.

Bart Stupak & the abortion issue. Stupak said that opposition to abortion was “embedded in me early on.” A

middle child of ten in a Catholic family, Stupak had always been pro-life, as were nearly all elected officials in the

Upper Peninsula. That said, Stupak had never made abortion a major focus of his campaigns or political work. A

reliable pro-life vote, Stupak had also been a supporter of programs to provide contraception, unlike some of his

longtime supporters, including the United States Conference of Catholic Bishops and the National Right to Life

Committee.

In fact, Stupak said, “I’d spent 16 years being the go-between between the Choicers and the Lifers.” As a

member of the Energy & Commerce Committee, the committee with principal authority for overseeing healthcare

matters in the House, Stupak, a lawyer by training, said he had often been asked to try to come up with language

that would be acceptable to pro-life legislators on bills involving such things as stem cell research and financial aid

for international family planning work. Though solidly in the pro-life camp, “I had built up credibility on both sides

of the issue,” he said.

Signs of trouble. In June 2009, some 200 pro-choice activists arrived in Washington D.C. to lobby for the inclu-

sion of abortion access under the new health reform law. It was, to Stupak and other pro-life legislators, a worri-

some sign. To warn pro-choice Democrats not to jeopardize health reform by trying simultaneously to liberalize

abortion policy, Stupak sent a letter signed by 19 House Democrats to House Speaker Nancy Pelosi (D-CA) on June

HKS Case Program 6 of 23 Case Number 2039.0

25, which stated, “We cannot support any healthcare reform proposal unless it explicitly excludes abortion from

the scope of any government-defined or subsidized health insurance plan. Without an explicit exclusion, abortion

could be included in a government subsidized healthcare plan under general healthcare.” 9 [See Exhibit 2.]

Stupak’s letter hinted, right at the outset of the Obamacare debate, at a potentially deadly rift in the Demo-

cratic Party, and kicked up a small flurry in the press. In an effort to reassure the pro-life legislators, President

Obama weighed in on the question: “I’m pro-choice, but I think we also have the tradition in this town, historically,

of not financing abortions as part of government-funded healthcare. My main focus is making sure that people

have options of high quality care at the lowest possible price.” 10

But in July, pro-choice legislators sent a deliberate shot across the bow, Stupak said. In the spring and early

summer, the House Rules Committee, chaired by pro-choice Representative Louise Slaughter (D-NY), had refused

to allow pro-life Congressmen to add the traditional Hyde Amendment and similar riders to several small appropri-

ations bills. In July, the Committee refused to allow the addition of the Hyde Amendment to a major bill—the an-

nual appropriation for the combined Labor and Health & Human Services Departments. At this point, Stupak felt

he had to draw a line in the sand. He persuaded 40 fellow legislators to vote against the usually pro forma rule

allowing the Labor-HHS appropriation to come up for a vote. The maneuver caught Pelosi and her leadership team

by surprise. They were none too pleased, but the move proved effective. Pelosi and her leadership team backed

down, agreeing, after all, to allow Stupak and his pro-life allies to include the Hyde Amendment rider on the Labor-

HHS allocation. Stupak’s group, in turn, switched its votes, allowing the vote on the appropriation to proceed.

These machinations occurred quickly and behind-the-scenes. But from Stupak’s point of view, the pro-life group

had sent an important message: the pro-choice Democrats would not be allowed to renege on the longtime abor-

tion truce—and if they tried, they were in for a fight.

Though disappointed, there was a grudging acceptance on the part of most pro-choice members by this point

that, in order to pass a health reform bill, it would have to be “abortion-neutral”—that is, in line with current poli-

cy. But, by its nature, Obamacare would expand the role of the federal government in funding and regulating

healthcare. In that context, there was considerable debate about what “abortion-neutral” really meant.

Defining ‘Abortion-Neutral’

Some pro-life activists, including Richard Doerflinger, associate director of the U.S. Conference of Catholic

Bishops, the most powerful Catholic lobbying group in the country, wanted to see the current de facto policies—

especially those barring the use of federal funds for abortion—codified in the health reform law, so that it would

not be necessary to attach the Hyde Amendment or similar riders to the annual appropriations bills each year. To

“Conservative Democrats Warn Against Funding Abortion in Healthcare Reform,” U.S. News & World Report, by Dan Gilgoff, July 1, 2009, http://www.usnews.com/news/blogs/god-and-country/2009/07/01/conservative-democrats-warn-against- funding-abortion-in-healthcare-reform, retrieved January 26, 2010. 10

“Obama: Abortion Funding Not Main Focus of Health Reform,” by Stephanie Condon, CBS News, July 21, 2009, http://www.cbsnews.com/news/obama-abortion-funding-not-main-focus-of-health-reform/ , retrieved January 16, 2015.

http://www.usnews.com/news/blogs/god-and-country/2009/07/01/conservative-democrats-warn-against-funding-abortion-in-healthcare-reform

http://www.cbsnews.com/news/obama-abortion-funding-not-main-focus-of-health-reform/

HKS Case Program 7 of 23 Case Number 2039.0

pro-choice activists—who disliked the Hyde Amendment to begin with—such statutory language overreached the

status quo; they did not want to see abortion restrictions codified in law.

But perhaps the greatest controversy concerned insurance policies that would be offered under the new

health insurance exchanges. The exchanges would provide a place for private individuals and small businesses to

purchase private insurance plans on better terms than those in the current marketplace. But the insurance plans

would have to meet federally established standards. And an estimated 85 percent of the policies would be pur-

chased with some form of federal subsidy or tax credit. Did that mean that no policy purchased with federal assis-

tance could include abortion coverage, except in event of rape, incest, or threat to the life of the mother? The pro-

life advocates said yes, that was exactly what it meant. Women who desired abortion coverage could purchase a

separate rider, also through the exchange, but they would have to use their own money to do so.

Pro-choice activists rejected this interpretation of “abortion-neutral.” To require women to buy separate abor-

tion coverage presupposed that insurance companies would offer such riders—they might not—and required

them to anticipate ahead of time the possibility of needing abortion coverage, which pro-choice advocates thought

both unworkable and offensive. What’s more, they argued, the premiums paid under the exchange were paid by

the policy holder with the help of federal subsidies or tax credits. Thus, they argued, the law should allow individu-

als and businesses to purchase insurance that included abortion coverage, as they could, for the most part, on the

open market. 11

The federal funding issue could be handled by requiring the insurance companies to separate out

the federal funds to ensure that they not be used to pay for the abortion portion of the coverage. Pro-life activists

dismissed this idea as a mere accounting trick and insisted it respected neither the spirit nor the intentions of the

Hyde Amendment.

Abortion Enters the House Debate on Health Reform

When the House began its committee work on health reform in the summer of 2009, Stupak sat on the Energy

& Commerce Committee, one of the three House committees responsible to report out a draft bill on healthcare

reform. 12

In late July, as the committee was preparing to report out its version of a draft healthcare bill, one com-

mittee member, Lois Capps (D-CA), proposed an amendment that attempted to resolve the abortion question. In

line with the pro-choice interpretation of “abortion-neutral,” it would have required insurance companies to seg-

regate the federal dollars, to ensure that they were not used to pay for the abortion coverage.

To Stupak, the Capps amendment was inadequate. He proposed an alternative amendment—in line with the

pro-life interpretation of “abortion-neutral”—which would have barred anyone receiving a federal subsidy from

buying a general healthcare policy that included abortion coverage. The policy holder could, however, with her

own money, buy a separate rider for abortion coverage through the exchange. (Abortion coverage was relatively

To clarify, individuals were able to purchase health insurance that included abortion coverage, provided their local insurance companies offered such coverage and provided they did not reside in one of the nine states that barred the inclusion of abor- tion coverage in basic health insurance. 12

The other two were the Ways & Means Committee and the Education & Labor Committee.

HKS Case Program 8 of 23 Case Number 2039.0

inexpensive—perhaps $1-2 per month.) On July 31, the committee voted down the Stupak amendment, 30-29, in

favor of the Capps amendment. [Exhibit 3.]

Stupak was not ready to admit defeat, however. In November, the House would vote on a final draft of its

health reform bill, HR 3962. Stupak wanted to re-introduce his amendment to the full House—this time, co-

sponsored by Joe Pitts (R-PA). “I spent all of August and September and October building support for the Stupak-

Pitts Amendment,” he said. But Stupak had to wage a political battle with House Speaker Pelosi to allow the

amendment to come to a vote. On September 28, Stupak sent a letter signed by 25 Democrats and 158 Republi-

cans to Pelosi, which stated, “We urge you to allow members of the House to vote their consciences with regard to

abortion and healthcare reform by allowing consideration of an amendment to prohibit government funding of

abortion.” 13

Pelosi, meanwhile, hoping to avoid a showdown on the emotionally freighted abortion issue, focused intently

on negotiating with the House Blue Dogs, who were primarily concerned about cost issues in the Obamacare bill.

By November 6—the day before the House was initially scheduled to vote on HR 3962—she had made headway,

but still did not have the 218 votes she needed to ensure passage of the bill. She needed to bring Stupak onboard,

along with whatever bloc of votes he might control. That day, Pelosi and Stupak struck a bargain. Pelosi agreed to

add the provisions of the Stupak-Pitts amendment into HR 3962 without requiring a separate vote by the House

(“to avoid the big showdown,” Stupak said), under the stipulation that the provisions would sunset after two years.

After that, the abortion restrictions would have to be voted annually, as a rider to the appropriations bills, just as

the Hyde Amendment was. 14

No sooner was this deal struck, however, than Pelosi was forced to call it off. When she had told the members

of the Pro-Choice Caucus of the deal, they had been livid. They adamantly opposed the addition of the Stupak-Pitts

language. 15

Stupak learned of this late-breaking development just as he was sitting down to dinner. “Pelosi calls my

cell phone: Deal’s off. I said, what do you mean ‘deal’s off’? You gave me your word! You’re Speaker!” But at this

point—with the Stupak-Pitts language no longer included in HR 3962—Stupak had to hightail it over to the Rules

Committee hearing, which had just started its deliberations, to offer his amendment for a House vote the following

day prior to consideration of HR 3962.

This appeal to the Rules Committee was not pleasant, Stupak said. The Congressman was made to wait until

after midnight just to make his pitch. Even then, the Committee chair gave him no indication whether the amend-

ment would or would not be permitted a vote; he learned it had been okayed only the next morning when he saw

it printed on the docket. Stupak surmised that the Democratic leadership did not actually know whether—if they

refused to allow his amendment to come up for a vote—he had enough support to block a vote on the larger

“Letter from 183 House Members Urges Pelosi to Allow Vote to Cut Abortion Funding,” by Steven Ertelt, LifeNews.com, Sep- tember 30, 2009, http://www.lifenews.com/2009/09/30/nat-5518/, retrieved January 30, 2015. 14

Stupak’s amendment would have barred the public option from including abortion coverage indefinitely, though this point was rendered moot by the Senate’s later action to eliminate the public option from the bill altogether. 15

http://www.lifenews.com/2009/09/30/nat-5518/

HKS Case Program 9 of 23 Case Number 2039.0

health reform bill. But they did know that the previous July, Stupak had secured enough pro-life votes to block ac-

tion on the Labor-HHS appropriations bill. In the end, Pelosi and her leadership team chose not to risk it. 16

Assured that his amendment would receive a vote, Stupak then embarked on a tense daylong battle. He had

secured support for the amendment the previous fall, but now the Pro Choice Caucus was pushing Democrats to

vote no and Republican support was wavering. In the end, Stupak’s amendment passed by a strong margin, with a

vote of 240 (including 64 Democrats) to 194. The newly amended HR 3962 was then adopted with 220 votes. Stu-

pak had won the day. But afterward, Representative Diana DeGette (D-CO) sent a letter to Pelosi with 41 signa-

tures warning her that she must find a way to get the Stupak-Pitts language out of the bill during the conference

committee negotiations with the Senate, or pro-choice legislators would vote down the healthcare reform bill:

“The Stupak-Pitts amendment to HR 3962, The Affordable Healthcare for America Act, represents an unprecedent-

ed and unacceptable restriction on women’s ability to access the full range of reproductive health services to

which they are lawfully entitled,” the letter stated. “We will not vote for a conference report that contains lan-

guage that restricts women’s right to choose any further than current law.”

The Spotlight Shifts to the Senate

At this point, attention pivoted to the Senate, where Majority Leader Harry Reid was trying to corral 60 votes

in favor of health reform. It was, for the Senate leader, heavy sledding. To the dismay of liberal Democrats, Senator

Lieberman exacted a major concession in return for his vote: removal of the public option from the bill. Other con-

servative Democrats were persuaded to vote for the bill only with the addition of expensive sweeteners. Among

the most controversial of these was the so-called Corn-Husker deal, which would have allowed Nebraska, alone

among all the states, to avoid incurring any state costs as part of the health reform bill’s Medicaid expansion, in

order to secure the vote of Senator Ben Nelson (D-NE). Another was the so-called Second Louisiana Purchase,

which earmarked $300 million in Medicaid funds for disaster relief, defined such that only Louisiana qualified, in

order to secure the vote of Senator Mary Landreiu (D-LA).

The Senate also considered and rejected the Stupak-Pitts amendment, adopting a softer abortion restriction

instead. Under the Senate bill, an individual could buy an insurance policy that included abortion coverage, even if

she received a federal subsidy, but she had to make a separate payment for the abortion portion of the insurance,

using only her own money. It was stricter than the Capps Amendment, but not as strict as Stupak-Pitts. The Senate

passed its healthcare reform bill, as amended, with 60 votes on December 24, 2009.

Stupak assumed that the abortion language, along with other differences between the House and Senate bills,

would be sorted out in the health reform conference committee. In the meantime, he headed home for his holiday

break. The Congressman had just returned from a run with his wife when he found, to his surprise, a voicemail

message from Rahm Emanuel, Obama’s Chief of Staff, “just screaming at me—expletives—you call me right now.”

Stupak soon learned that, without authorization, one of his staffers had published a press release under Stupak’s

name excoriating the Senate abortion language and vowing to kill the bill. “My phone just lit up,” Stupak recalled.

It was, in his view, an exasperating bungle. True, he did not like the Senate’s abortion language, Stupak said, but “I

Ibid.

HKS Case Program 10 of 23 Case Number 2039.0

wouldn’t have put out a press release. The ink hadn’t even dried! The senators hadn’t even gotten to the airport to

fly home for Christmas!” He immediately issued a retraction, but “no one hears that part,” he said. “They just know

you’re already condemning the damn bill before it ever got to AP [news service]. From there, all the focus shifted

back to me and what was I going to do. It really got hard.”

But it would get harder still in the next three months.

A Curve Ball from Massachusetts

Once the House and Senate had each adopted a version of the health reform bill, the next step—under usual

circumstances—would have been the creation of a bicameral conference committee to hammer out the differ-

ences between the House and Senate bills. To pass the final conference report would once again have required a

majority vote in the House and 60 votes in the Senate. But on January 19, 2010, the Senate Democrats lost their

60-vote supermajority, due to a special election in the state of Massachusetts.

Senator Ted Kennedy (D-MA), the Senate’s lead champion of health reform for many decades, had died of

brain cancer on August 25, 2009. Massachusetts’ Democratic governor, Deval Patrick, had appointed a longtime

Kennedy friend and ally, Paul Kirk, as his temporary replacement. In fact, Kirk had delivered one of the Senate’s

crucial 60 votes for health reform on December 24. But Massachusetts law required that a special election be held

to elect a replacement when a senator could not serve out his/her term. That election took place on January 19,

2010. A stunned nation looked on as Massachusetts, usually one of the country’s most reliably liberal states, voted

anti-Obamacare Republican Scott Brown to fill out Kennedy’s term.

After the blood, sweat, and tears of the previous six months, the prospects for health reform suddenly looked

bleak. Had House Democrats been willing to pass the Senate bill without changes, the Democrats could have

adopted a healthcare reform bill without the need for another Senate vote. But anyone close to the process knew

this was out of the question. “House Democrats hated the Senate bill. Despised would not be too strong a word,”

wrote Daschle in Getting it Done:

They thought it had too many compromises—no public option, state health exchanges

instead of a national exchange, subsidies too low to make health insurance affordable

for the people who had to buy it. They were especially adamant that the Cadillac tax

[the tax on especially generous health plans] had to go. And the Nebraska Medicaid deal

was pure poison to them. 17

[Exhibit 1.]

In fact, Daschle continued, there were reports that, if asked to vote on the Senate bill, as many as 78 of the

258 House Democrats would vote “no,” leaving the House far short of the votes it needed. 18

Ibid., p. 234. 18

In the spring of 2010, House Democrats needed 216 votes, rather than the 218 votes they had needed in the fall, because there were four vacant seats in the chamber. Getting it Done: How Obama and Congress Finally Broke the Stalemate to Make Way for Healthcare Reform, by Senator Tom Daschle with David Nather, Thomas Dunne Books, St. Martin’s Press, New York, 2010, p. 234.

HKS Case Program 11 of 23 Case Number 2039.0

At this point, many thought health reform was doomed. But out of the ashes, the Democrats came up with a

new procedural strategy: reconciliation. Under the reconciliation process, the House would pass the Senate bill.

The House and Senate would then pass an identical reconciliation bill immediately afterward that made mutually

agreed changes to the just-passed Senate bill. Most importantly, the Senate could curtail debate and pass a recon-

ciliation bill with a simple majority, rather than 60 votes. But there was a catch. To pass legislation via the reconcil-

iation process, every piece of that legislation had to have a material impact on the budget. Any aspect of the legis-

lation that did not could be struck down later, under a rules challenge. That meant certain elements of the Senate

bill, with only an incidental relationship to the budget, were off-limits. One example was the House preference for

a national health exchange over a system of state-run health exchanges. Another was the House’s tougher abor-

tion restrictions—the Stupak-Pitts Amendment.

The Vise Tightens

It is impossible to know what would have happened to the abortion language in the Affordable Care Act if the

Senate had not lost its supermajority. But in this new landscape—where the Democrats’ one chance of passing a

health reform bill hinged on using the reconciliation process, and where the reconciliation process could not be

used to address abortion policy—pressure on Stupak abruptly increased. Most pro-life organizations, led by the

National Right to Life Committee, preferred to see the health reform bill die rather than be enacted without the

protections of the Stupak-Pitts Amendment. Catholic organizations, however, were split over the issue. The power-

ful U.S. Conference of Catholic Bishops sided with the pro-life groups. But the Catholic Health Association, which

represented Catholic hospitals, supported health reform and argued that the protections against abortion funding

in the Senate bill were good enough. So, too, did the Leadership Conference of Women Religious, an organization

of Catholic nuns and sisters.

In a quickly polarizing world, Stupak stubbornly persisted in trying to walk a middle road. “I never asked for

this fight, I never wanted this fight,” the Congressman said. But he did agree with pro-life critics that the Senate

language on abortion was inadequate. He wanted the bill to state, unequivocally, that no federal funds would be

used to pay for abortion services or coverage. He wanted the bill to stipulate that no policy bought with a federal

subsidy could contain abortion coverage. Furthermore, the Senate had neglected to include language that explicit-

ly barred new federal allocations to community health clinics from being spent on abortions. In the past, the Hyde

Amendment’s restrictions on Medicaid funding had, effectively, prevented community health clinics from provid-

ing abortions. But under the Affordable Care Act, “the clinics were taking on an expanded role,” Stupak said. “To us

pro-lifers—we felt the Senate language would allow abortions at the clinics.” This had been an apparent oversight

in the drafting of the bill. Given that the community health clinics had not provided abortions in the past, Obamac-

are supporters thought it farfetched to think they would suddenly start to do so. Stupak, however, was a lawyer—

and he wanted the language air-tight.

Not only did Stupak feel honor-bound to pursue the issue because of his own personal beliefs, he also felt an

obligation to his pro-life constituents back home. Though he had done no polling on the question, he estimated

that two-thirds of the district favored the Stupak-Pitts Amendment. “I can go back to my district [on some issues]

HKS Case Program 12 of 23 Case Number 2039.0

and say I did the best I could, I tried,” he told a Wall Street Journal reporter. “But on abortion, you can’t go back

and say, ‘I used to be right-to-life, now I’m pro-choice.’ That doesn’t work. It’s either/or.” 19

In fact, Stupak’s district was clearer in its stand on abortion than in its stand on healthcare reform, he said.

Based on the 10,000 to 15,000 messages he received each week from constituents, they were about evenly split on

Obamacare. 20

But, unlike many other House Democrats from swing districts, Stupak was not worried that his con-

stituents would turn against him if he voted for the bill. Mostly, he said, the bill was so complex, they were not

sure what to think about it: “They’ll leave the legislative part to my good judgment. And I can sell that healthcare

bill anywhere.”

The bottom line was that Stupak wanted health reform to pass, but he also wanted it to include the Stupak-

Pitts Amendment, and he persisted in believing that both things were possible, with some careful maneuvering.

Early in his career as a Congressman, Stupak had become fairly expert on the rules governing Congress. So, as the

ground shifted beneath him, “I’m sitting up at night trying to think, OK, how do we do this?” In fact, Stupak be-

came convinced there was another way to replace the Senate language on abortion with his own language: a tech-

nical amendment to the Senate bill. This was a means for introducing corrective language into a bill shortly after its

passage, and it required only a simple majority in the Senate. With the support of pro-life Republicans in the Sen-

ate, he believed, it should be possible to enact such an amendment. In early discussions, Senator Tom Coburn (R-

OK)—Stupak’s liaison with pro-life Republican Senators—had been encouraging about the idea.

Meanwhile, however, “many Democrats and progressives were exasperated with Stupak,” wrote Daschle in

Getting it Done. “They thought he was holding up the bill for no good reason, and pushing too hard, even after

other anti-abortion Democrats were satisfied.” 21

Even sympathetic Democrats advised Stupak that it was time to

abandon the abortion fight. “As my buddy [Mike] Doyle [D-PA] would say, Bart, give it up. You’ve run this as far as

anyone could. Let it go. It’s out of your hands. Let’s just pass the son of a gun and get out of here. I said, ‘Mike, I

just can’t do that.’ We had some long debates on that, what’s morally right and what’s not.”

Ultimately, however, Stupak’s technical amendment never came to the test in the House because it was dealt

a death blow by pro-life Republicans in the Senate, who decided not to back Stupak’s strategy after all. When he

heard the news from Coburn, his liaison, he knew immediately it was a devastating setback. “I remember vehe-

mently arguing, ‘Tom, this is all about life. Why won’t you do this? We can resolve this issue,’” Stupak said. “He

said, you don’t understand. It’s no longer about life. It’s about giving Obama a victory. We’re not going to do it.

We’re leaving town and you’re on your own.”

Stupak was bitterly disappointed. “It was a hard, hard talk,” he recalled. The pro-life Republicans had made a

calculated decision to risk passage of a health reform act with weak abortion language, he concluded, in the hope

“Stupak Abortion Curbs Fit District/Liberals Oppose Health Clause, but Michigan Democrat Cites Support at Home,” by Doug- las Belkin and Janet Adamy, Wall Street Journal, January 11, 2010. 20

Ibid. 21

HKS Case Program 13 of 23 Case Number 2039.0

that, by so doing, they would push Stupak and his small group of pro-life Democrats to cast the deciding votes

against health reform.

Still reeling from the news as he stood in the House Chamber, fellow pro-life Representative Joe Donnelly (D-

IN) rounded on him. “He says, where the hell were you?” Stupak recalled. “I said, ‘Joe, what the hell are you talking

about?’” Donnelly told him he had just come from a meeting with other pro-life House Democrats and White

House officials in House Speaker Pelosi’s office. White House lawyers had drafted an Executive Order intended to

address the concerns of pro-life members, he said, and the White House wanted to know whether that would per-

suade them to drop their objections and vote for the Affordable Care Act. Stupak had not been invited to the

meeting, however, and the other pro-life Democrats were not ready to make a deal without him. “A couple hours

later, my buddy Doyle comes up to me,” Stupak said. “Mike is the guy they always use to get to me and pull me

back in a little bit. He says, so if you got to write an Executive Order, what would it say?”

Decision Time

To engage in a negotiation over an Executive Order about abortion held a number of risks for Stupak. For one,

he did not know how far Obama would be willing to go to accommodate pro-life concerns in such an order. After

all, the President was avowedly pro-choice. He also knew that pro-life advocates would find the Executive Order a

distant second best to statutory language, which had more teeth. An Executive Order could be rescinded at any

time, and its interpretation and enforcement would largely depend on the President.

That said, many important policy actions in U.S. history had been made via Executive Orders—most famously,

Abraham Lincoln’s Emancipation Proclamation. In addition, pro-life groups had applauded George W. Bush’s 2001

Executive Order to limit federally funded stem cell research.

What’s more, with the option of a technical amendment dead, Stupak was not sure he had any better alterna-

tives. He might be able to muster the votes to block the House from taking a vote on the Affordable Care Act. If he

did that, his goal would be to force the Democratic leadership “to come back and negotiate with us again.” But he

knew that the maneuver might, instead, end up killing the bill and perhaps dousing chances at health reform for

another 20 years. That was by no means an outcome Stupak wanted. “I didn’t want to kill the bill because I believe

in life,” he said. Studies showed that “every 12 minutes, someone in this country dies because they don’t have

basic healthcare,” Stupak noted. “That’s 45,000 a year. I’m for life. So if we leave abortion out of it, we’re saving

45,000 lives” by passing health reform, he said. “It was a real hard one. I had many sleepless nights.”

In addition, there were practical considerations. Slowly but surely, pro-life House Democrats were dropping

out of Stupak’s group of 12. By mid-March, the group was down to 6 or 7. “We were losing everybody,” he said.

Nor was Stupak sure how many votes Pelosi could call in for the Affordable Care Act, if it came down to the wire.

He suspected that by the time of the vote, she might be able to muster all 216 votes she needed without him. “We

always say, she carries some votes in her pocket. Every speaker does. In other words, if the vote is close, members

will say, I’m going to vote no, but if it comes down to it, I won’t kill the bill. I’ll switch my vote.”

HKS Case Program 14 of 23 Case Number 2039.0

If Pelosi did have the votes, then, Stupak reasoned, his best move, for the pro-life cause, was to get as much as

he could by way of an Executive Order. Otherwise the bill would simply pass as it was, with the Senate’s existing

language. “I was negotiating all the way to the end, trying to get something,” he said.

Negotiating the Executive Order

Stupak began negotiating the language of the Executive Order on Friday March 19 at 11 p.m. and continued

the negotiations until a few hours before the House vote on the Affordable Care Act on Sunday March 21. The ne-

gotiations took place in a fourth floor storage room in the Cannon House Office Building. “I could not be seen going

into the White House, because it was staked out. People could not be seen going into my office,” Stupak explained.

“We all have a little storage room where we throw all our crap. Mike Doyle’s was in Cannon. So we used Mike’s

storage room.”

Stupak was not able to get everything he wanted in the Executive Order. The President was not willing to bar

anyone who received a federal subsidy or tax credit from obtaining a health insurance plan that included abortion

coverage under the health exchanges. Nor was he willing to bar certain forms of contraception considered aborti-

facients by pro-life activists. 22

But Stupak did win the concessions he thought were most crucial. Obama was willing

to stipulate, unequivocally, that no federal allocations, subsidies, or tax credits would pay for abortion services or

abortion insurance coverage. He was also willing to underscore an existing nondiscrimination policy for healthcare

providers who refused to provide abortion services as a matter of conscience. And he was willing to clear up the

apparent oversight in the Senate bill concerning the community health clinics, by stating that new federal funds

provided to such clinics could not be used for abortion services. [Exhibit 4.]

Stupak announced the agreement at 4 p.m. on March 21, flanked by several other pro-life House Democrats.

“We’ve always said—most of us, at least—that we wanted to see healthcare reform—but there was a principle to

us that meant more than anything, and that was the sanctity of life,” he told the assembled reporters. “I’m pleased

to announce that with the help of the President and the Speaker, we were able to come up with an agreement to

protect the sanctity of life in this healthcare reform. There will be no funding for abortion in this legislation.” 23

Persona Non Grata

Throughout the month of March, Stupak was the target of considerable vitriol from both sides of the political

spectrum, which found common ground in calling Stupak and his supporters “Stupakrats.” Early in the month, as

he continued to push for the Stupak amendment, traditional Democratic supporters turned on him, accusing him

of becoming the agent of anti-health reform interests. “My pollster called me,” Stupak recalled. “He had to dump

An abortifacient is a birth control method that ends a pregnancy. Because there was uncertainty and/or variation in the way some birth control methods worked, and a difference of opinion about whether pregnancy should be defined as beginning when an egg was fertilized or when a fertilized egg implanted in the wall of the uterus, opinions differed about which birth con- trol methods, if any, were rightly considered abortifacients. 23

“Bart Stupak Will Vote Yes on Health Care: ‘Real Winners are the American People,’” by Drew Grant, Mediaite.com, March 21, 2010, http://www.mediaite.com/online/stupak-to-vote-yes-on-health-care-bill/, retrieved February 1, 2015.

http://www.mediaite.com/online/stupak-to-vote-yes-on-health-care-bill/

HKS Case Program 15 of 23 Case Number 2039.0

me because of pressure from the National Education Association, who was one of his clients. The unions, who al-

ways supported me quite generously, said, we’re done. We’re not going to support you.”

In the last week before the ACA vote, Tea Party protesters arrived in Washington and some of the anti-

Obamacare demonstrations turned ugly. On March 20, the day before the vote, an angry crowd outside the Capitol

chanted “Kill the bill! Kill the bill!” As Democrats approached the building, one protester yelled a racial slur at Rep-

resentative John Lewis (D-GA), a pre-eminent civil rights leader. Another shouted an anti-gay insult at Representa-

tive Barney Frank (D-MA), considered the nation’s most prominent homosexual politician. And a third spat on Rep-

resentative Emanuel Cleaver (D-MO), a Methodist pastor. As rumors leaked out that Stupak might be making a

last-minute deal with Democrats on the abortion language, the pro-life hero suddenly turned pariah and came

under frenzied pressure from the pro-life lobby. Most dispiriting to Stupak, personally, were pro-lifers who priori-

tized killing healthcare reform over fixing the abortion language in the bill. “If you really believe in the social and

moral teachings of the church, you wouldn’t want to kill healthcare for all,” he said.

Stupak also found his abandonment by longtime allies painful and disappointing. After working hand in glove

with the U.S. Conference of Catholic Bishops for months, Stupak tried repeatedly to engage Assistant Director Do-

erflinger in writing the Executive Order, to no avail. “The Bishops, Right to Life—they would not even, in the end,

return my calls,” Stupak said. He gave it one last try, when he had the final version of the Executive Order in hand

on Sunday March 21. Reaching Doerflinger on the phone, Stupak pleaded with him to read the final draft: “I said,

would you at least look at it? This is our last shot. We’re going to close this thing out. We’re not going to look at it.

If you’re interested in life, if I’ve missed something, please help me out. I’ve never done this.” Doerflinger repeat-

edly said “no” and refused to listen as Stupak tried to read him passages from the order over the phone. Finally, he

told Stupak, “I’m hanging up now” and ended the call.

Stupak’s office was inundated with angry calls and hate mail—sometimes as many as 1,500 letters and emails

per day. His Michigan home was so beset by angry and obscene phone calls—sometimes at 2 and 3 a.m.—that

Stupak’s wife had to disconnect the phone. Stupak even received death threats, some so serious that for two

weeks, the Congressman and his family were placed under round-the-clock police protection. One Michigan resi-

dent, chillingly, stated his intention to paint a local bridge with the blood of Stupak and his family members—a

threat that ultimately resulted in his arrest and conviction.

March 21: The Final Vote

After forging a last-ditch agreement on the Executive Order on the afternoon of March 21, Stupak thought the

fireworks were over, but the Republicans had one last card to play, when the House took up consideration of the

Affordable Care Act later in the day. As a matter of tradition, when the House was about to take a final vote on a

bill, it allowed the minority party—in this case, of course, the Republicans—a chance to offer a “motion to recom-

mit.” This was a last chance for the minority party to offer an amendment to the bill. In the unlikely event that the

amendment passed, it had the effect of referring the entire bill back to committee for further work instead of pro-

ceeding to the final vote. Thus it was in the interest of the Republicans to choose an amendment that might prove

irresistible to conservative Democrats. In the case of the Affordable Care Act, the Republicans chose to use the

HKS Case Program 16 of 23 Case Number 2039.0

Stupak-Pitts Amendment, verbatim, in their motion to recommit. 24

House Majority Leader Steny Hoyer (D-MD)

told a surprised Stupak he had five minutes to gather his thoughts and speak against the motion. Thus, Stupak

found himself in the awkward position of having to stand up and ask his fellow Congressmen to vote against his

own amendment, the very thing that, for nine months, he had been pressing them to approve.

“The motion is nothing more than an opportunity to continue to deny 32 million Americans healthcare,” Stu-

pak said on the House floor. For those who valued the sanctity of life, he continued, the bill would guarantee that

“all life, from the unborn to the last breath of a senior citizen, is honored and respected. For the unborn child, his

or her mother will finally have pre- and post-natal care under our bill. If the child is born with medical problems,

we provide medical care without bankrupting the family.” The Republican motion, he added, “is really to politicize

life, not to prioritize life.” 25

In the midst of his remarks, Representative Randy Neugebauer (R-TX) interrupted with

an outburst, shouting, “Baby killer!” and was gaveled into silence.

The House of Representatives easily voted down the motion to recommit. In the final tally, the House passed

the Affordable Care Act and reconciliation bill with 220 votes.

Aftermath

Stupak’s decision to accept President Obama’s Executive Order was interpreted in very different ways by dif-

ferent people. Some analysts saw the move as a face-saving way for Stupak and his allies to step back from the

ledge and cast their votes for the health reform bill. While relieved, some progressives remained angry that Stupak

had carried the issue to the brink. To many pro-life activists, Stupak’s action was seen as an outright act of betray-

al. Stupak lost the endorsements of the National Right to Life Committee and other pro-life organizations. The or-

ganization Americans United for Life, which had announced its intention to award Stupak its 2010 Defender of Life

Award, publicly rescinded that announcement.

For his part, Stupak defends the decision on the merits. “First of all, we got the protections for life we wanted.

And secondly, we got healthcare. Now, if I was going to say, no, my way or nothing, guess what? You’d have no

healthcare, you’d have no protections for life. What do you get? Nothing. I got something.”

But Stupak also paid a steep price for his actions. On April 9, 2010, Stupak announced that he would not seek

re-election. In the end, both President Obama and House Speaker Pelosi called Stupak to urge him to change his

mind, but he declined. The ultra-conservative Tea Party, having vowed to wage a mighty campaign against Stupak,

took credit for this decision. His critics gleefully speculated that Stupak pulled out in order to avoid losing the elec-

tion. Stupak said none of this was true. “Could I have won in my district? Yeah, I would have won. But at what

cost? Was it worth it?” In fact, Stupak said, he had made a private decision when he won the 2008 election that he

would not stand for election again, and he had stopped fundraising well before the healthcare debacle. He had

The motion to recommit also included a provision to strip from the bill the financial penalties to individuals who failed to abide by the new mandate to buy health insurance. 25

As quoted in Getting it Done: How Obama and Congress Finally Broke the Stalemate to Make Way for Healthcare Reform, by Senator Tom Daschle with David Nather, Thomas Dunne Books, St. Martin’s Press, New York, 2010, p. 258.

HKS Case Program 17 of 23 Case Number 2039.0

lasted six years longer than any other representative from the Upper Peninsula, he noted: “I was really tired out. I

wanted to go home.”

Stupak’s intention to leave Congress did not alter his handling of the Obamacare fight, he added, but it did

make the unpleasantness easier to bear: “It was just easier knowing, and telling my wife, we’ll get through it and

be fine, because I’m not running again.”

But leaving Congress did not entirely set to rest the distasteful events of 2009 and 2010 for Stupak. “For the

first year or so, people would still spit at me and everything else, when they’d see me publicly,” he said. Five years

later that hostility had faded but, he added, “I still grapple with it.”

After I announced I was not going to run [for Congress], I decided to go back to run-

ning—and I really shouldn’t because of my knees—but it just gives me a peace of mind. I

can get out there and run and clear my head. I have to do it all the time. This healthcare

vote and what I went through is never far from my mind. It still tears at you.

HKS Case Program 18 of 23 Case Number 2039.0

Exhibit 1. Health Reform: Points of Consensus & Dispute among Democrats

Consensus. The basic idea of providing universal coverage—or something close to it—was a starting goal for

most Democrats in both the Senate and the House. Some 49 million Americans lacked health insurance altogether

in 2009—about 16.1 percent of the population—and, conservatively, another 25 million were underinsured—that

is, they could not afford to pay the gap between the cost of medical care and the amount covered by insurance.

For those with some level of health insurance, nearly half—46 percent—were insured by one of several public pro-

grams—Medicare for the elderly, Medicaid for the poor, Veteran’s Affairs for veterans, the Bureau of Indian Affairs

for Native Americans. The rest were covered by employer-based insurance or an individual plan purchased on the

open market.

The most dysfunctional part of health insurance market comprised the individuals, families, and small busi-

nesses that purchased insurance on the open market. For them, policies were often unaffordable, too limited in

coverage to be useful, or unavailable because of pre-existing health conditions. As a consequence, many in this

population were either uninsured or under-insured, and vulnerable either to being denied needed healthcare or

suffering a health-related bankruptcy. There was general acceptance, therefore, for the idea of creating some sort

of “health insurance exchange” that would draw these individuals and small groups into a diverse pool, allowing

insurance companies to spread the risk over a larger population. Insurance companies would be required to pro-

vide standardized coverage and reasonable premiums. In the vast majority of cases—perhaps 85 percent—the

federal government would supply those who purchased insurance through the exchange with some level of subsi-

dy or with tax credits.

But the country was suffering a major recession and Obama believed an expensive new federal program

would be entirely unacceptable to the majority of citizens who, after all, already had insurance. So he put forward

a crucial principle to Congressional leaders: the plan must pay for itself. In addition, it should include incentives to

slow the growth of healthcare costs and improve the quality of care.

Dispute. If most Democrats agreed on these general goals, there was much disagreement about how to

achieve them. Among the greatest controversies:

 Whether to include a public option in the exchange—a Medicare-like insurance option to compete with pri-

vate plans—was the single most controversial aspect of the bill. Liberal advocates of the public option argued

that it was the best way to ensure that individuals and small businesses would have affordable, high quality

options. But critics argued that the public option would be an unfair competitor, crowding private insurers out

of the market.

 The question of whether individuals should be required to buy insurance was controversial early on—Obama

himself had campaigned against such a mandate—but a hard look at the numbers persuaded most legislators

(and Obama) that the mandate was necessary. Otherwise, the healthiest individuals might elect not to buy in-

surance—which, in turn, would leave the rest of the exchange pool sicker and more expensive to insure.

HKS Case Program 19 of 23 Case Number 2039.0

 Especially in light of the healthcare mandate, there was a general recognition that many people buying health

insurance through the exchange—85 percent by some estimates—would require some sort of federal subsidy,

but a lot of disagreement about what the level of that subsidy should be.

 One of the biggest controversies was over the source of new revenues to pay for expanded coverage. Some—

especially in the Senate—wanted to tax the so-called “Cadillac” health plans: insurance plans that offered cov-

erage far more generous than those available to most people. But ironically, high income individuals were not

the only people with Cadillac plans. Union members, too, often had Cadillac plans, as their negotiators had

won incremental improvements, year after year, in lieu of pay hikes. House Democrats, many of whom were

supported by unions, therefore opposed this option, preferring to tax high income individuals directly—a 5.4%

tax on individuals earning more than $500K and couples earning more than $1 million per year. This idea was a

nonstarter with many Senators, however, who were leery of inviting a charge of class warfare. Also, some crit-

ics were afraid the strategy would hurt small business owners, who combine personal and business income in

their tax returns.

 Another big divide concerned the structure of the healthcare exchange. Should it be a single national health

exchange (favored by the House and by most progressives) or a system of state-based exchanges (favored by

the Senate)?

HKS Case Program 20 of 23 Case Number 2039.0

Exhibit 2. Letter to House Speaker Pelosi from Pro-Life House Democrats, June 25, 200926 Dear Speaker Pelosi:

As the debate on healthcare reform continues and legislation is produced, it is imperative that the issue of abor-

tion not be overlooked. Plans to mandate coverage for abortions, either directly or indirectly is unacceptable.

We believe in a culture that supports and respects the right to life and is dedicated to the protection and preserva-

tion of families. Therefore, we cannot support any healthcare reform proposal unless it explicitly excludes abortion

from the scope of any government-defined or subsidized health insurance plan. We believe that a government-

defined or subsidized health insurance plan, should not be used to fund abortion.

Furthermore, we want to ensure that the Health Benefits Advisory Committee cannot recommend abortion ser-

vices be included under covered benefits or as part of a benefits package. Without an explicit exclusion, abortion

could be included in a government subsidized healthcare plan under general healthcare. The healthcare reform

package produced by Congress will be landmark, and with legislation as important as this, abortion must be ad-

dressed clearly in the bill text.

Furthermore, funding restrictions save lives by reducing the number of abortions. The Guttmacher Policy Review, a

leading pro-choice research organization noted “that about one third of women who would have had an abortion

if support were available carried their pregnancies to term when the abortion fund was unavailable.”

Thank you for taking the time to consider our request. By ensuring that abortions are not funded through any

healthcare reform package, we will take this controversial issue off the table so that Congress can focus on crafting

a broadly-supported healthcare reform bill.

Respectfully yours,

Reps. Dan Boren (D-OK); Bart Stupak (D-MI); Colin Peterson (D-MN); Tim Holden (D-PA); Travis Childers (D-MS);

Lincoln Davis (D-TN); Heath Shuler (D-NC) Solomon Ortiz (D-TX); Mike McIntyre (D-NC); Jerry Costello (D-IL); Gene

Taylor (D-MS); James Oberstar (D-MN); Bobby Bright (D-AL); Steve Driehaus (D-OH); Marcy Kaptur (D-OH); Charlie

Melancon (D-LA); John Murtha (D-PA); Paul Kanjorski (D-PA); and Kathleen Dahlkemper (D-PA).

As published in “Conservative Democrats Warn Against Funding Abortion in Healthcare Reform,” U.S. News & World Report, by Dan Gilgoff, July 1, 2009, http://www.usnews.com/news/blogs/god-and-country/2009/07/01/conservative-democrats- warn-against-funding-abortion-in-healthcare-reform, retrieved January 26, 2010.

http://www.usnews.com/news/blogs/god-and-country/2009/07/01/conservative-democrats-warn-against-funding-abortion-in-healthcare-reform

HKS Case Program 21 of 23 Case Number 2039.0

Exhibit 3. The Stupak-Pitts Amendment to H.R. 3962 (a) IN GENERAL –

No funds authorized or appropriated by the Act (or 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, except in the case

where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a

physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physi-

cal condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape

or incest.

(b) OPTION TO PURCHASE SUPPLEMENTAL COVERAGE OR PLAN –

Nothing in this section shall be construed as prohibiting any nonfederal entity (including an individual or a State or

local government) from purchasing separate or supplemental coverage for abortions for which funding is prohibit-

ed under this section, or a plan that includes such abortions, so long as-

(1) Such coverage or plan is paid for entirely using funds not authorized or appropriated by this Act; and

(2) Such coverage or plan is not purchased using-

(a) individual premium payments required for an Exchange-participating health benefits plan towards which an

affordability credit is applied; or

(b) other nonfederal funds required to receive a federal payment, including State’s or locality’s contribution of

Medicaid matching funds.

Notwithstanding section 303(b), nothing in this section shall restrict any nonfederal QHBP offering entity from of-

fering separate supplemental coverage for abortions for which funding is prohibited under this section, or a plan

that includes such abortions, so long as-

(1) premiums for such separate supplemental coverage or plan are paid for entirely with funds not authorized or

appropriated by this Act;

(2) administrative costs and all services offered through such supplemental coverage or plan are paid for using only

premiums collected for such coverage or plan; and

(3) any nonfederal QHBP offering entity that offers an Exchange-participating health benefits plan that includes

coverage for abortions for which funding is prohibited under this section also offers an Exchange-participating

health benefits plan that is identical in every respect except that it does not cover abortions for which funding is

prohibited under this section.

Source: The United States House of Representatives, http://housedocs.house.gov/rules/3962/Stupak3962_108.pdf.

http://housedocs.house.gov/rules/3962/Stupak3962_108.pdf

HKS Case Program 22 of 23 Case Number 2039.0

Exhibit 4. The Executive Order

Executive Order 13535—Patient Protection and Affordable Care Act’s Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion

By the authority vested in me as President by the Constitution and the laws of the United States of America, in-

cluding the “Patient Protection and Affordable Care Act” (Public Law 111-148), I hereby order as follows:

Section. 1. Policy. Following the recent enactment of the Patient Protection and Affordable Care Act (the “Act”), it

is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abor-

tion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent

with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of

this order is to establish a comprehensive, Government-wide set of policies and procedures to achieve this goal

and to make certain that all relevant actors — Federal officials, State officials (including insurance regulators) and

healthcare providers — are aware of their responsibilities, new and old.

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions

to the newly created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience

(such as the Church Amendment, 42 U.S.C. 300a-7, and the Weldon Amendment, section 508(d)(1) of Public Law

111-8) remain intact and new protections prohibit discrimination against healthcare facilities and healthcare pro-

viders because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Depart-

ment of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Per-

sonnel Management.

Sec. 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically

prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of

rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be

operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal

funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the

woman would be endangered) and requires State health insurance commissioners to ensure that exchange plan

funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB

funds management circulars, and accounting guidance provided by the Government Accountability Office.

I hereby direct the Director of the OMB and the Secretary of HHS to develop, within 180 days of the date of this

order, a model set of segregation guidelines for State health insurance commissioners to use when determining

whether exchange plans are complying with the Act’s segregation requirements, established in section 1303 of the

Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that

States should follow to conduct independent regular audits of insurance companies that participate in the health

insurance exchanges. In developing these model guidelines, the Director of the OMB and the Secretary of HHS shall

HKS Case Program 23 of 23 Case Number 2039.0

consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not

limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of

those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will

have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to State health

insurance commissioners on how to comply with the model guidelines.

Sec. 3. Community Health Center Program. The Act establishes a new Community Health Center (CHC) Fund within

HHS, which provides additional Federal funds for the community health center program. Existing law prohibits

these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the

life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations

containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropria-

tions of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct

the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and com-

ply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are

not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority

granted by law or Presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the

OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, em-

ployees or agents, or any other person.

BARACK OBAMA

THE WHITE HOUSE,

March 24, 2010.

Source: Whitehouse.gov, https://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-

affordable-care-acts-consistency-with-longst.

https://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-affordable-care-acts-consistency-with-longst

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