While the Senate brokers of a compromise on abortion language support the language, and they claim that Nancy Pelosi agrees with them, members of the House on both side of the divide have made less charitable responses. The pro-choice caucus called the language “possibly unconstitutional,” and Bart Stupak, while disavowing the emails sent by his staff to the Senate GOP leadership, also sounded opposed:

“While I and many other pro-life Democratic House members wish to see health care coverage for all Americans, the proposed Senate language is unacceptable,” he said. “I look forward to working with members of the House, Senate and the Obama administration to find common ground on this issue and draft language that guarantees continuation of current law of no public funding for abortion.”

The conference committee that eventually determines the language in the bill will have to navigate the exchange design as a factor in whether or not the abortion language in the Nelson compromise can work.

The House and Senate differ fundamentally on the design of their exchanges. The House bill has a nationwide exchange where people can purchase insurance coverage; the Senate has a series of state-based exchanges; plans can be sold across state lines if states agree to a health care choice compact, however.

In his piece supporting the health care bill, public option “godfather” Jacob Hacker explained why he preferred the nationwide exchange setup from the House bill:

The lack of a public option also makes even more imperative tough requirements on insurers to make them live up to their stated commitment to change their business model and slow the spiraling cost of coverage. The most important way to do this is to move away from the Senate bill’s state exchanges and toward a national exchange such as that contained in the House bill. The federal government needs to be directly involved in implementing and enforcing strong national regulations of insurers and creating the new exchange. Otherwise, the effort for reform might fail at the hands of hostile governors.

The federal government is the only entity big enough and powerful enough to ensure a highly consolidated private insurance industry follows the law. It can and must demand transparency and obedience to the new rules. Insurers must open their books, and subject their rates, administrative costs, and profits to federal review. These new rules must apply to all plans, not just those within the exchange. And states should have authority not only to enforce these rules, but to innovate beyond them as well.

So there are two things in conflict here. Hacker wants national exchanges like in the House bill. Nelson’s compromise offers an opt-out for abortion services coverage on the Senate’s state exchanges. Without the state exchanges, Nelson’s compromise cannot work.

Nationwide exchanges would be much better – bigger risk pool, national regulation enforcement made necessary (the lack of a police force outside of a haphazard state framework is among the worst things in this bill). But getting them would blow up the Nelson deal. So it’s a Hobson’s choice: do you push for nationwide exchanges at the expense of women, or do you keep the compromise in place and maintain weak exchanges? There’s space for an insidious trade-off here.

Some experts are telling me the Nelson compromise could work with national exchanges- you’d just get denied abortion coverage when you type in your state – but it seems like there would be an equal protection challenge in that case, with the same federally managed exchange treating people differently.

This is but one of the confounding series of options available in conference committee, which could alternately alienate Democrats in both chambers and trigger a revolt.