Major portions of the Republican bill to repeal and replace ObamaCare will require 60 votes, according to the Senate parliamentarian, meaning they are unlikely to survive on the floor.
The parliamentarian has advised senators that several parts of the bill could be stripped out, according to a document released Friday by Sen. Bernie Sanders (I-Vt.), the ranking member of the Senate Budget Committee. (Read the guidance here.)
The provisions that would likely be removed include polices important to conservatives, such as restrictions on tax credits being used for insurance plans that cover abortion.
Language in the bill defunding Planned Parenthood for a year also violates budget rules, according to the parliamentarian. That guidance is sure to anger anti-abortion groups who backed the bill specifically because of those provisions.
In a statement, Planned Parenthood said it was “obvious” that the defunding provision would be a violation of the reconciliation rules.
“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,” the group said.
The parliamentarian has also not yet ruled on a controversial amendment from Sen. Ted Cruz (R-Texas) that would allow insurers to sell plans that do not meet ObamaCare regulations. If that provision were struck, conservative support for the bill would be in doubt.
Republicans are trying to use the budget reconciliation process to pass their healthcare bill with only a simple majority. The provisions deemed impermissible under that process can be stripped if a senator on the floor raises an objection.
Democrats would be virtually certain to deny Republicans the 60 votes they would need to keep portions of the bill intact.
The result is that the arcane rules of the Senate could end up making the bill harder for Senate Majority Leader Mitch McConnell (R-Ky.) to pass.
A spokesman for McConnell was quick to point out that the parliamentarian only provides guidance on the legislation to help inform subsequent drafts. The bill will have to change before it gets to the floor if Republicans want to salvage any of provisions in question.
GOP leaders have said they want to vote on a procedural motion to begin debate on ObamaCare repeal legislation early next week. However, it’s still not clear if they have the votes, or which legislation they will be voting on; the replacement bill, or repeal-only legislation.
Some conservatives were already questioning Friday why the Senate parliamentarian, Elizabeth MacDonough, would rule against Planned Parenthood defunding, when that provision was allowed under reconciliation in 2015.
A spokesman for Sanders said the guidance has changed because it is now clear that Planned Parenthood would be the only organization affected by the defunding language.
“It passed last time because there was at least a question that other entities could be affected by the language,” the spokesman said. “In the interim, Republicans have not been able to show that any entity other than Planned Parenthood is affected, and the new [Congressional Budget Office] score confirms that.”
In a blow to the insurance industry, the parliamentarian has advised that two key market stabilization provisions in the bill would be against the rules. First, the legislation can’t appropriate the cost-sharing reduction subsidies insurers rely on to keep premiums and deductibles low; it can only repeal them.
Additionally, a “lockout” provision requiring consumers with a break in coverage to wait six months before buying insurance also violates the rules, according to the guidance.
The provision was added to the bill to address concerns that people would only sign up for health insurance when they’re sick, if insurers are still prevented from denying coverage for pre-existing conditions.
The parliamentarian also advised that a specific provision dealing with New York State’s Medicaid program would be a violation of the rules. Senate Minority Leader Charles Schumer (D-N.Y.) seized on that decision.
“The parliamentarian made clear that state-specific provisions” violate the rules, Schumer said. “This will greatly tie the majority leader’s hands as he tries to win over reluctant Republicans with state-specific provisions. We will challenge every one of them.”