President Obama and the Democrats are touting their historic health care reform bill, which passed 60-39 along party lines today.

However, there is disappointment among liberals, particularly among pro-choice activists, about the compromise that Senate Majority Leader Henry Reid (D-Nevada) made to secure anti-choice Democratic Sen. Ben Nelson's (D-Neb.) vote.

We've run two op/eds on the Nelson deal this week—one from Washington Planned Parenthood Political Director Dana Laurent, who opposes the deal, and one from state Senate Majority Leader Lisa Brown (D-3, Spokane), a strong pro-choice voice who sympathizes with Reid and supports the bill.

To greet today's news, we're running an op/ed from local attorney Roberta Riley (a 2001 Ms Magazine Woman of the Year), who specializes in woman's health.

Riley writes about the constitutional implications—federal and state—that the Nelson and Rep. Bart Stupak (D-MI) amendments raise re: abortion rights.

Like it or not, most private insurance plans today offer abortion coverage. But this benefit may be stripped away under health reform. To secure the last few votes needed for passage, the major reform bill adopted moments ago by the Senate, and its earlier House counterpart, contain variations of the most sweeping abortion restriction in forty years. At the last minute insistence of the Catholic archbishops, the House bill's Stupak amendment forbids women from using their own premium dollars for abortion. Similarly, the Senate bill's Nelson amendment gives states the option of prohibiting abortion coverage in all plans sold on their exchanges. And, if a plan does offer abortion coverage, the insurance company and its enrollees will have to jump through unnecessary hoops in order to comply.

Analysts predict these added administrative obstacles will cause most plans to drop abortion coverage altogether. Hence, if the final legislation to be pounded out after Christmas includes some version of either the Stupak or Nelson amendment, women, particularly those facing expensive, risky medical complications during pregnancy, will suffer a real setback. Is this constitutional?

Recall from civics that the founding fathers wisely spread power between individuals, states, and the three branches of the newly formed federal government, granting the Supreme Court the power to interpret the US Constitution. And they drafted the beloved document in an era when women and black people were chattels and bloodletting was medical care. In 1973, a majority of justices on the court viewed the constitution as a living text that evolves with the times, recognizing, in Roe v. Wade, a right of privacy that forbids government interference with a woman's decision to terminate a pregnancy under limited circumstances.

A few years after this historic decision, a different, more conservative Supreme Court ruled that low income women who depend on Medicaid have no right to federal federal funding for abortion, unless their lives are in peril. Three years ago, an even more conservative five justice majority of the Court held that forcing women to suffer through risky, but not absolutely life threatening pregnancies, does not pose an unconstitutional "undue burden." If Congress deprives women of insurance coverage for abortion, it's hard to imagine that these five men, who still dominate the Court today, would find any violation of the constitution.

States will have some power to ameliorate whatever harm federal health reform inflicts on women. In fact, the Nelson amendment, if enacted, will launch a state-by-state battle over whether abortion coverage is offered in plans sold on the new insurance exchanges. State constitutional provisions may also come into play.  Dozens of states, including Washington, have Equal Rights Amendments (ERAs) that explicitly forbid government discrimination on the basis of sex. A woman's capacity for pregnancy, hence need for abortion, is a defining element of sex. And some state supreme courts have already interpreted these provisions to protect abortion rights.

Some states, including Washington, also have statutes protecting reproductive health. Ironically, insurance industry desire to charge sex-based premiums, a practice that will be abolished in health reform, and political opposition to abortion, defeated efforts to adopt the ERA in the US Constitution back in the 1970s. Thus, one can foresee future litigation pitting state rights versus federal power, and also, quite possibly, a renewed surge for a national ERA.

For the time being, women should insist that Congress and President Obama summon some jujitsu to remedy these issues now. Our fearless leaders should turn this 11th hour flexing of patriarchal muscle by the archbishops and a handful of lawmakers into a force for good. If health reform is going to marginalize abortion, it should, for instance, absolutely guarantee free, unobstructed access to all reliable methods of birth control.

President Obama campaigned on the promise to address the real problem of unintended pregnancy, the source of most abortions. And the Catholic hierarchy has, for too long, used its political power to restrict access not only to abortion, but also contraception, without which the average woman would bear 12-15 pregnancies before she reaches menopause. Horse trading is inherent to the legislative process and elected officials, unlike appointed judges, or religious leaders, marginalize female voters at their peril.

Roberta Riley, JD, has practiced health law for over twenty years.  In 2001 Ms Magazine named her a Woman of the Year in recognition of her advocacy on behalf of women and their health.