Former U.S. Sen. David Durenberger thinks Sen. Ben Nelson, D-Neb., and Rep. Bart Stupak, D-Mich., need a refresher course about a historic understanding in Congress that no abortion funding restrictions would be extended to private insurance.

Both Democrats managed to hold up health-reform bills unless new restrictions were included in their chambers' bills late last year. And each chamber's language on abortion continues to be a major hurdle in negotiations on a merged bill, particularly in the event that an anti-abortion Republican wins today's special election for the late Sen. Ted Kennedy's seat in Massachusetts.

"A switch of three votes in the House or one in the Senate could be enough to kill the bill, or at least force (President) Obama, (Senate Majority Leader Harry) Reid, and (House Speaker Nancy) Pelosi to start all over again," notes Peter Roff of U.S. News and World Report's Thomas Jefferson Street blog.

Durenberger, a moderate Republican known as "Senator Health," served in the Senate from 1978 to 1995. In 1976, Congress passed the Hyde Amendment, which prohibits federal tax dollars from being spent on abortion unless the pregnancy puts a woman's life at risk.

A departure from Hyde Amendment

"Despite what Stupak says, this thing departs from the Hyde Amendment and goes beyond it because it extends to private insurance," said Durenberger, who for many years was chair of Senate Finance Committee's Health Subcommittee.

I recently interviewed Durenberger for a Q&A on health-care reform, and found his insight on abortion's impact on the national reform debate worthy of a separate post.

Although Congress passed the Hyde Amendment before Durenberger was elected, it was hoped that its passage would prevent the abortion issue from hijacking every bill, he told me.

"It's [the threat] always around but the reason the Hyde Amendment got passed was … everybody knew that if abortion became a do-or-die issue that it would arise on every bill. … Republicans were committed to doing that, and now you've got some Democrats who are as well."

Passage included an understanding
Passage of the Hyde Amendment included an understanding that public-funding restrictions wouldn't extend to private insurance, he said.

"There was an agreement informally reached across the aisle, across the House and the Senate, that there would be no public programs like Medicaid funding abortions, and everybody knew that the second issue would be well, 'How about private insurance?'

"Private insurance is subsidized in this country," he explained. "You buy it at work and you get a tax subsidy as an employee and the employer gets a tax subsidy. That's like public funding in a sense, so why don't you make the same argument with private insurance?

"And the agreement (first set in the mid-1970s), repeated hundreds of times on efforts to change it since then has been: 'Let's not go there, because if we go there, then we've got to go to 501[c]3 deductions for charitable, religious, scientific, education. ... There's no end to it when you go there.'

So, why isn't this informal agreement getting air time, print or pixels?

"Nobody discusses this because the public isn't going to understand it; the church guys don't want to understand it," he said. "This whole issue of private insurance and the subsidies of private insurance would be off the table."

Nuances, big picture didn't get through
Even so, somebody in the Democratic leadership should have taken Stupak and Nelson aside and explained the nuances as well as the big picture, Durenberger said.

"Stupak has been there long enough, and Nelson should have been there long enough, and some of the people that both of them serve with … the Democratic Party over time should have provided them enough information about that distinction that when they're in a political party that has to deliver on a unique universal coverage bill that they would not step forward and say, 'There will be no bill unless I get my religious version of insurance.' "

Stupak's version in the House is considered more restrictive than Nelson's in the Senate.

The Stupak Amendment prohibits the use of federal funds for abortions in the public option and wouldn't allow individuals who receive tax subsidies to buy insurance that covers elective abortions in the insurance exchange. Any individual, however, could buy a separate private plan covering abortions with their own funds. Private plans also still could offer elective abortions. (Here's a description from the Library of Congress' THOMAS).

Nelson's Senate version has managed to anger pro-choice and anti-abortion advocates alike — as well as members of Congress from other states because of a deal he cut with the Senate leadership in exchange for his yes vote on the entire bill. The deal, which now looks shaky, gives Nebraska a 100 percent federal subsidy to expand its Medicaid program.

The Nelson compromise
The compromise in the Senate bill allows women who qualify for federal subsidies to buy insurance that covers abortion, but they would have to make two premium payments to their insurers. (Here's a good explanation from the Boston Globe.)

Durenberger, for one, said he was pleased to see the backlash against Nelson and is hopeful Stupak will receive some of the same for putting overall national health-care reform at risk because of their religious views on abortion. 

"If every one of 535 elected officials took that position, whether they believe in Islam, or they believe in Judaism, or Christianity in its many forms, or Buddhism, Hindu or Shinto, or whatever it is, nothing would ever get done in this country," Durenberger said.

While Durenberger doesn't have any patience for the conservative/fundamentalist wing of his party (see my Q&A), he thinks Nelson and Stupak will hear more outcry from Democratic voters.

"You can't do anything this big that involves this many people, where your whole party's future and its commitment to something that hasn't happened in a hundred years is at stake, and you just stand there and say, 'This is what I believe about abortion. I don't care what the rest of you think about coverage for poor people' — 40,000 of whom die every year. I doubt if they're going to be able to pull that one off."

Casey Selix, a news editor and staff writer for MinnPost[dot]com, can be reached at cselix[at]minnpost.com. Follow her on Twitter.