Ben Nelson Sends Abortion Back to the States

As the health care bill moves through the Senate pockmarked but alive—with a crucial 60-40 procedural vote [1] in the wee hours Monday morning—my inbox includes a message from the National Women's Law Center calling Senator Ben Nelson's abortion provision "unwise, unworkable, and unfair." The NWLC complains of "burdensome hurdles," singling out the rule that would make women who get abortion coverage make two separate payments each month, one for the abortion coverage and one for everything else. This is truly an idea only a diabolical bureaucrat could love. When is it ever a good idea to be punitive by imposing stupid inefficiency?

But the other just-for-Nelson concession doesn't seem so bad to me. Under the Senate bill, states can choose to bar abortion coverage in the new insurance exchanges. Or they can choose to allow it. Yes, this will leave some women in conservative parts of the country who enter the exchanges without insurance that covers abortions. But it's a lot better than the blanket ban in the House version of the bill because of the Stupak Amendment. And Nelson's opt-out also makes abortion a state-by-state decision, often the best way to prevent the issue from detonating politically. Given what's on the line, that seems like a compromise the pro-choice side can live with.

At the same time, pro-choice groups have to protest, because Nelson's opt-out enshrines in law the geographic reality that has eaten away at the national right created by Roe v. Wade, namely that abortions are somewhere between difficult and impossible to get in swathes of the South and West. Formally speaking, this has nothing to do with constitutional law. But as my colleague Will Saletan points out, it sends a signal that the national reach of Roe isn't sacrosanct.