Stupak Anti-Abortion Amendment Has A Huge Loophole

Nancy Pelosi managed to gather enough votes to pass the almost 2000 page House health care reform bill (H.R.3962) by allowing the Stupak Amendment. Many blue dog Democrats would not vote for Pelosicare because because it covered abortion with health care reform funds.

According to the New York Times:

To save the health care bill she (Pelosi) had to give in to abortion opponents in her party and allow them to propose tight restrictions barring any insurance plan that is purchased with government subsidies from covering abortions.

How tight are these restrictions? Here is a screen shot from a pdf of the Stupak Amendment.

The Amendment says no funds may be used to fund abortion or any health care plan that includes abortion unless there is 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 physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

This certainly sounds like a strong prohibition, except for the rape or incest clause. Usually Democrats try to leave a huge loophole by sticking in an exception for "mother's health." This could be interpreted to include mental health. Under the The Mental Health Parity Act most of the distinctions insurance companies can make between mental health and physical health have been removed. At first glance, this loophole seems to be be missing from the Stupak Amendment. That is until you look up the definition of "physical disorder." A physical disorder (as a medical term) is often used as a term in contrast to a mental disorder, in an attempt to differentiate medical disorders.

Wikipedia (I don't link Wikipedia) says:

A physical disorder (as a medical term) is often used as a term in contrast to a mental disorder, in an attempt to differentiate medical disorders which have an available objective mechanical test (such as chemical tests or brain scans), from those disorders which have no objective laboratory or imaging test, and are diagnosed only by behavioral syndrome (such as those in the Diagnostic and Statistical Manual of Mental Disorders or DSM manual. Most familiarly, this is a term used as opposed to supposed "purely" mental disorders.

This looks like a back door to the old mental health abortion loophole when the "mother's health" term is used. Many people claim there is no distinction between physical and mental disorders. There is already a court ruling defining bipolar as a physical disorder and not a mental illness.

The Case: Fitts v. Fannie Mae[1]

The ruling by the United States District Court for the District of Columbia involves an employee of a major mortgage company who developed bipolar disorder and whose employee disability insurance provider stopped paying disability benefits after 24 months on the grounds of bipolar disorder being a ‘mental illness’. The policy provided cover until the age of 65 for physical disability. Ms. Fitts had worked for the company for 13 years before she was first diagnosed with bipolar disorder in 1995. The employee- Ms. Jane Fitts, successfully brought a case against both the employer and the insurer arguing that bipolar disorder did not clearly fall in the category “mental, emotional or nervous diseases or disorders of any type”. The court awarded “prejudgment interest on all sums due her and the costs of this action “.

Based on the language of the Stupak Amendment and the above court ruling, a suicidal woman diagnosed as bipolar could qualify for abortion funds under H.R.3962. Democrats only need to get a liberal judge to issue more court rulings defining depression and other mental health problems as physical disorders. Then, the abortion floodgate is open. This is a loophole you can run a herd of donkeys through. There is even the possibility the abortion restriction would be declared as unconstitutional even if abortion coverage doesn't get added back in later. Partial birth abortion laws have already been declared unconstitutional if they don't include the "mother's health" loophole.