Rep. Bart Stupak (D-MI) is demanding that the abortion language in health care reform be fixed before they pass the current comprehensive Senate health care bill in the House. In itself this is not an insane request given that once the bill passes, Stupak has no more leverage. With almost 300 House bills stalled in the Senate, there is no reason to believe they would actually get to a Stupak abortion bill. In theory, Stupak’s request could be done with a sidebar bill with a self-executing measure so that the Senate health care bill passes with the same vote on a sidebar bill containing the Stupak language. The problem is Senate Republicans will probably not play along.

The sidebar bill with the Stupak language would first need to pass the Senate. While the Republican Senate Caucus contains many anti-abortion members, they are saying they will not vote for the Stupak language if it means enabling the health care bill to eventually pass. Even if pro-choice Senate Democrats could be whipped to vote for the Stupak language, Democrats would still be one vote shy of overcoming a filibuster or waiving the Byrd rule. Of course If the Senate health care bill already passed the House and was signed into law the pro-life Republican senators would have no reason to oppose a follow-up stand alone Stupak abortion bill. That would be unacceptable to Stupak and that follow-up bill could likely be killed by pro-choice senators.

There seems no way out of this stand off without one side giving in. It’s possible some pro-life groups could whip a few Republicans senators to vote for the sidebar bill in effect helping to pass health care reform but that seems very unlikely. Unless Stupak’s gang backs down or Pelosi can find enough votes without them it would appear the only potential strategy might be for Vice President Joe Biden to play hardball by using his power as the president of the Senate to effectively nullify the Byrd rule in the Senate during reconciliation.

Of course if Biden is willing to take that bold step there is no reason to put the House and Senate Democrats through this whole complicated mess. There would also be no need to force House Democrats to vote for the unpopular Senate bill at all with its many problems and toxic deals. Democrats could just take up a “new” bill which would effectively be a merged version of the House and Senate bill and put the whole bill through reconciliation with Biden ruling against any Byrd rule point of order.

My thinking is if the Democrats are really planning on bending Senate rules for Stupak they might as well bend them for the whole bill to make life way easier. In for a penny, in for a pound.

Update – All 41 Senate Republicans sent a letter making it clear they will vote against waiving the Byrd rule. That would make putting abortion changes in the reconciliation impossible with out hardball measure from Biden.