The abortion issue may take down ObamaCare, even if Congress pulls the Health Care Nuclear Option in a desperate attempt to pass the bill. Congressman Bart Stupak (D-MI) declared yesterday that "several Democrats who voted for it the House would oppose it next time around" without removing pro-abortion language in the Senate passed ObamaCare bill. This is a big problem for the proponents of ObamaCare, because under the special rules of the reconciliation process, ObamaCare can't be fixed.
Even if the Democrats attempted to insert a ban on the federal funding of abortion in the reconciliation measure, that would cause both procedural and vote counting problems in the Senate. For all the talk yesterday from the President about this being the time to vote on ObamaCare, an unresolved abortion controversy makes prospects for passage doubtful.
The AP reports:
A congressman who has played a key role in the long-running health care debate says he and 11 other Democrats will vote against the overhaul unless a provision subsidizing abortion is removed. Rep. Bart Stupak argued Thursday that the provision in the Senate-passed version has language that would permit the federal government to "directly subsidize abortions."
ObamaCare passed the House by a 5 vote margin and the Senate passed a different version on a party line vote. There is no margin for error and a switch of 10 members of the House from Yea to Nay is curtains for ObamaCare this year. It is clear that if the abortion issue is not addressed, Speaker of the House Nancy Pelosi (D-CA) has a big, potentially unresolvable, strategic problem to get this bill passed.
The ObamaCare Nuclear Option has two elements. Passage of the Senate passed bill in the House with language that allows for the federal funding of abortion. Then the House shall pass a "reconciliation sidecar" bill to amend ObamaCare in a manner that insures final passage in the House and Senate. The plan is for the Senate to pass the reconciliation measure then the President signs both ObamaCare and the ObamaCare reconciliation measure. This scenario breaks down early in the process if not enough House members will vote for ObamaCare. If it does not forbid the federal funding of abortion, then Speaker Pelosi may not have enough support in her caucus to complete the strategy.
Using reconciliation as a means to make changes to the Senate passed ObamaCare bill is a problem. The rules are strict and one rule in particular may make the Health Care Nuclear Option a failed strategy. Senator Robert Byrd (D-WVa.) passed a rule years ago that said anything that does not score or is incidental to the budget purposes is out of order on a reconciliation bill. Abortion language would seem to be subject to that rule and specifically has been ruled out of order during the 1995 reconciliation bill.
Robert Dove, former Senate Parliamentarian in 1995 told MSNBC that there was a prior ruling of the Senate that abortion language is out of order on a reconciliation bill. Dove said the following:
In 1995 they had a very large reconciliation bill and there was a provision that was in that bill which provided that no federal funds could be used for abortion. It was my view that it violated the Byrd rule even thought it did score. It would have saved the federal government money. But part of the Byrd rule is that if something is in there not for its budgetary effect, but for its policy effect that invokes something called the incidental test and it can be thrown out.
If the Democrats want to violate the rules of reconciliation and attempt to put a ban on the federal funding of abortion in the reconciliation measure, they will have two problems. First, they may not have the votes to pass ObamaCare in the Senate with a ban of federal funding of abortion.
Also, the Vice President, as President of the Senate, would have to toss aside the rules of the Senate, and the precedent cited by Bob Dove, to include abortion language that is incidental to ObamaCare. As I wrote in Red State last week:
Robert Dove, former Senate Parliamentarian told MSNBC that “it is the decision of the Vice President whether or not to play a role.” The “Byrd Rule” forbids matters that are incidental to the reconciliation process. That rule could be set aside by the Vice President. All the Democrats would need is a simple majority to sustain the ruling of the Vice President when challenged by a point of order. If the Vice President has the will to issue friendly rulings, he can make Parliamentarian irrelevant.
This abortion issue may be the Archilles heel of ObamaCare and may be impossible to resolve.