In the process of drafting their health care bill to "repeal and replace" Obamacare, Republicans included a provision that made the bill even more controversial — a ban on federal funds being used to reimburse Medicaid recipients who get health care from Planned Parenthood clinics. But on Friday, it was determined that because of the Senate's "Byrd Rule," defunding Planned Parenthood is essentially impossible at this point, spelling a huge, if unexpected victory for reproductive rights advocates.
The so-called Byrd Rule (named after former senator Robert Byrd) would require 60 votes for the Senate to defund Planned Parenthood, which it cannot reach without votes from Democrats.
Throughout the health care saga, Republicans have been using a specific loophole in Senate procedure to circumvent the 60-vote threshold to block a filibuster. Under the Budget Reconciliation process, Republicans can prevent the Democrats from filibustering the health care bill, therefore only needing 50 votes to pass it. But that process is supposed to only apply to legislation affecting the budget, not normal lawmaking and regulation.
This has already led to the Republicans being constrained in the methods they use to eliminate Obamacare. For instance, they could not remove the provision of the Affordable Care Act that fined people for not purchasing health insurance, but they could on the other hand reduce the cost of that provision to zero.
But despite hopes by Republicans that restricted spending on health clinics that performed abortions could be counted as a budget change, according to the Senate parliamentarian it really should be treated as legislation, not just moving money around. Not only does this make it probably impossible for Republicans to defund Planned Parenthood nationally without Democratic votes (which they almost certainly won't get), it also makes passage of the whole healthcare bill that much harder.
"I would call it a fantastic surprise that's very helpful. But I hesitate to ever say the fight is ever over, because it's not just about this bill."
Hard-liners such as the group of 31 ultra-conservative representatives known as the House Freedom Caucus have already made it clear that defunding Planned Parenthood is non-negotiable, and have said they wouldn't support any bill that doesn't do it. Back in May, Mark Meadows, the leader of the Freedom Caucus, said that without defunding Planned Parenthood, an Obamacare repeal bill couldn't pass the House.
Pro-choice advocates claimed this development as a minor victory in the midst of a year when they've fought consistently for the very existence of Planned Parenthood and the ability to provide reproductive care as legislation aimed at stopping them.
Dana Singiser, Vice President of Public Policy and Government Affairs for Planned Parenthood Federation of America, said in a statement:
No amount of legislative sleight of hand will change the fact that the primary motivation here is to pursue a social agenda by targeting Planned Parenthood because we provide the full range of reproductive health care, including abortion. The ‘defund’ Planned Parenthood provision is the epitome of a mean-spirited policy that hurts millions of women and has no place in legislation, period. The bottom line is that it is absurd for anyone to assert that the purpose of this provision is budgetary -- when it is plainly clear that this dangerous policy is rooted in a political agenda.
But advocates nevertheless see this fight as far from over, and expect that things will continue to be difficult, despite this unexpected reprieve from the Senate parliamentarian.
"I would call it a fantastic surprise that's very helpful," Wayne Shields, President of the Association for Reproductive Health Professionals, tells Bustle. "But I hesitate to ever say the fight is ever over, because it's not just about this bill. It's about a lot of other stuff. And there are terrible things happening everywhere with this administration, and with the Hill, and also in the states. So there's a huge, huge potpourri of things to pay attention to."
"Absolutely, it was a good thing to see some of the pieces of this come down, Erica Sackin, Director of Political Communications at Planned Parenthood Federation of America, tells Bustle.
"But again, Mitch McConnell has made it clear that he wants to push for a vote. And every single version of a bill Mitch McConnell has introduced has been terrible for women. Not only have they all tried to defund Planned Parenthood — and let me mention to you that they all carried abortion restrictions which were also taken out by the Byrd Rule for the same reason, because it's a political move that isn't a budgetary one — and beyond that, every version that we've seen has slashed maternity care, has made it possible to charge women more for simply being a woman, has made things like having a baby, domestic violence — all sorts of things count as pre-existing conditions."
To Planned Parenthood and other pro-choice advocates, this is not a time to celebrate, but an even more essential moment to keep up the pressure on members of Congress. "Our biggest takeaway from this period is that resistance works," says Sackin. "Making your voice heard works. Members of Congress are publicly saying they won't support this bill because they've heard from so many of their constituents, asking them not to vote for it."
Beyond the Planned Parenthood provisions, other elements of the Senate health care bill also might have to get the axe. Though less flashy, another important rule is that people who lack health insurance have to wait 6 months before buying it — an incentive for healthy people to buy insurance without the tax penalty from Obamacare. The new health care bill would eliminate that.
Without that rule, there's very little punishment for healthy people to go without health insurance, knowing they can just buy it when they get sick, since insurers still aren't allowed to increase prices for pre-existing conditions. And if the only people buying health insurance are sick, the costs to health insurers are extremely high — health insurance premiums would likely skyrocket.
A spokesman for Senate Majority Leader Mitch McConnell told The New York Times that “this is guidance, not a ruling,” so there is a possibility that Republicans will try to go around the parliamentarian's determination or change the rules.
Still, this could be a massive blow to a bill that was already having trouble getting enough support to pass, and perhaps an even bigger victory for advocates trying to preserve access to reproductive care at Planned Parenthood.