On Friday night, Elizabeth MacDonough, the Senate parliamentarian, made damn sure that defunding of Planned Parenthood will not be part of the Senate health care bill, citing the Byrd rule to stipulate that the key provisions violated Senate rules. MacDonough advised then-Vice President Albert Gore on the procedure for counting ballots following Bush v. Gore.

Senator Bernie Sanders chortled, “The parliamentarian’s decision today proves once again that the process Republicans have undertaken to repeal the Affordable Care Act and throw 22 million Americans off of health insurance is a disaster.”

It is now clear the Senate’s version of a new health care bill will not defund Planned Parenthood, as it would require 60 votes in the Senate to implement such an action. Here’s what was stated by the Senate Budget Committee Minority Staff regarding background on the Byrd Rule Decisions:

The parliamentarian has made a determination that certain provisions of the Republican “Better Care Reconciliation Act” released on June 26, 2017, violate the Byrd Rule. This means that, should the Senate proceed to the bill, these provisions may be struck from the legislation absent 60 votes.

Notably, the parliamentarian has advised that abortion restrictions on the premium tax credit and the small business tax credit, and the language defunding Planned Parenthood, violate the Byrd Rule. Further, the “Buffalo Bailout” which was used to secure votes in the House has also been found to violate the Byrd Rule – threatening other state-specific buy-offs.

Provisions Subject to a 60-vote Byrd Rule Point of Order

Defunding Planned Parenthood: This section prohibits Planned Parenthood from receiving Medicaid funds for one year. (Sec. 124)

Abortion Restrictions for Tax Credits: Two separate provisions contain Hyde Amendment language to prevent premium tax credits and small business tax credits from being used to purchase health insurance that covers abortion. (Sec. 102(d)(1) and Sec. 103(b))

The Byrd Rule, which can only be waived by 60 votes in the Senate, prohibits the Senate from considering extraneous matter as part of a reconciliation bill or resolution or conference report thereon.

There are six tests for matters to be considered extraneous under the Byrd rule: As delineated by Congresswoman Louise Slaughter, the criteria apply to provisions that do not produce a change in outlays or revenues; produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision; are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure; increase outlays or decrease revenue if the provision's title, as a whole, fails to achieve the Senate reporting committee's reconciliation instructions; increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision's title, as a whole, remains budget neutral; or contain recommendations regarding the OASDI (social security) trust fund.

Permitted exceptions include: a provision that mitigates direct effects attributable to a second provision which changes outlays or revenue when the provisions together produce a net reduction in outlays; the provision will result in a substantial reduction in outlays or a substantial increase in revenues during fiscal years after the fiscal years covered by the reconciliation bill; the provision will likely reduce outlays or increase revenues based on actions that are not currently projected by CBO for scorekeeping purposes; or such provision will likely produce significant reduction in outlays or increase in revenues, but due to insufficient data such reduction or increase cannot be reliably estimated.

Originally, this article misstated the procedure for appointing the parliamentarian; MacDonough was appointed by Senate Majority Leader Harry Reid in 2012.