Pro-Life Groups Respond to PoliticsDaily’s David Gibson on Abortion Funding

National   |   Steven Ertelt   |   Mar 16, 2010   |   9:00AM   |   WASHINGTON, DC

Pro-Life Groups Respond to PoliticsDaily’s David Gibson on Abortion Funding

by Steven Ertelt Editor
March 16
, 2010

Washington, DC ( — Two pro-life groups — Americans United for Life and the National Right to Life Committee — have issued responses to an editorial written by David Gibson of Politics Daily. The editorial has confused some pro-life advocates by suggesting the Senate health care bill doesn’t fund abortions, but the groups confirm that’s not the case.

In his commentary on the Politics Daily web site, David Gibson attacks pro-life opposition to the Senate health care reform bill on multiple fronts. His analysis is mistaken, as is extensively explained in our previous blog posts and memoranda analyzing the Senate bill; however, one point deserves more explanation.

Gibson argues that new funding for Community Health Centers (CHCs) authorized and appropriated through the Senate health care reform bill (and President Obama’s plan) will not be used to pay for abortions because (a) CHCs do not perform abortions and (b) the funding will be subject to the Hyde Amendment (the abortion funding prohibition added annually to the Labor Health and Human Services appropriations bill). Below is a point-by-point rebuttal of Gibson’s claims.

Gibson: “Most obviously, none of the 1,250 Federally Qualified Health Centers, or FQHCs, that would receive the billions in money through the reform bill offer abortion services. . . . In addition, the statement [from the National Association of Community Health Centers) said that ‘Health centers do not plan to, nor are they seeking to, become providers of abortion. . .’”

Americans United for Life responds: There are no restrictions on the provision of abortion services for community health centers in the Federally Qualified Health Center authorizing statute. In fact, groups such as the Reproductive Health Access Project and the Abortion Access Project strongly advocate for the inclusion of abortion services in community health centers as part of providing "primary care" and preventive services.

Gibson: “The federal Department of Health and Human Services (HHS) has also said that none of the health centers are abortion providers, and none of them are operated by Planned Parenthood. Moreover, it is unlikely that Planned Parenthood or any other provider of reproductive health services could qualify as a Community Health Center because these centers by law have to provide all-around care for both men and women, and for children …”

AUL: While the Federally Qualified Health Centers statute generally requires each Community Health Center to provide a broad array of primary health care services, particular centers are also specifically allowed to provide for some of the required services through contracts or cooperative arrangements. It is certainly possible for Planned Parenthood to participate in the community health center program.

This is clearly the intent of pro-abortion members of the Senate. During the Senate HELP Committee mark-up, an amendment by Sen. Mikulski (D-Md.) was accepted that would require insurers to cover “essential community providers [ECP’s]…that serve predominantly low-income, medically under-served individuals.” Sen. Mikulski explained the amendment as providing for “any service deemed medically necessary or medically appropriate.” She acknowledged that Planned Parenthood will fall into this category of “community providers” and will therefore be included in health insurance networks under the bill. Sen. Mikulski refused, at Sen. Hatch’s request, to include specific language in the bill excluding “abortion services” from “medically necessary or medically appropriate” care.

While CHC’s may not be precisely the same as ECP’s, pro-abortion lawmakers clearly have a plan to ensure that Planned Parenthood qualifies for grants geared towards the underserved as part of health care reform.

Gibson: “Any money from a new health care law would be subject to the same Hyde amendment restrictions as money from the Stupak version of the House bill (which allocates $12 billion to community health centers).”

AUL: Gibson is correct that the Stupak-Pitts language in the House bill mirrored the Hyde Amendment and would therefore have prohibited the use of the new funding for CHCs for abortions. However, the Stupak-Pitts language was excluded from the Senate bill, which is awaiting a vote in the House. The abortion funding restriction in the Senate bill applies only to the affordability and cost sharing credits, not to the provision that includes the $7 billion ($11 billion in President Obama’s proposed version) expansion of CHC funding. The Senate had the opportunity to adopt the same strong anti-funding language found in the House bill, but instead elected to include weak language that only applies to one provision in the bill. President Obama is adopting the Senate approach, not the House approach.

Gibson: “The language in the Senate bill is not as explicit as the House bill about the path of the money, but the health care center money can only go through HHS and thus must be subject to Hyde restrictions. The Senate bill…’provides that this funding is to be transferred to HHS accounts to increase funding for community health centers and does not provide for segregating these funds,’ said Timothy Stoltzfus Jost, a law professor at Washington and Lee University and a top health care expert who has done an extensive analysis of the abortion financing question. ‘Since all other HHS funding, including expenditures from trust funds, is subject to the Hyde Amendment, these funds cannot be used to pay for abortions.’”

AUL: The Hyde amendment’s restrictions on abortion funding only apply to funds appropriated through the LHHS Appropriations bill and to funds in any trust fund to which funds are appropriated through the LHHS appropriations bill. The Senate bill self-appropriates the $7 billion for CHCs, and the bill does not specifically provide that the new funds will be housed in a trust fund that is funded by the LHHS appropriations bill, only that it will be transferred to HHS. Funds under the Senate bill that are merely transferred to HHS are not covered by Hyde.

Therefore, there is no guarantee that the funds will be covered by the Hyde amendment. To prohibit the use of these funds for abortions, the Department of Health and Human Services will have to apply existing regulations to the funding, and those regulations will have to withstand the scrutiny of courts. Given the current pro-abortion administration and Secretary Kathleen Sebelius’ staunch pro-abortion stance during her time as governor of Kansas, as well as courts’ historical inclinations to read abortion coverage and funding into statutes that do not explicitly exclude it, no one can be confident these funds will not pay for abortions.

National Right to Life has also issued a response, written by legislative director Douglas Johnson:

Mr. Gibson asserts that Community Health Centers (CHCs) "have never provided abortions and are not about to start, nor can they do so under federal law." While he does not here provide any basis for these assertions, I assume that he is relying unskeptically on a recent press release from the National Association of Community Health Centers (NACHC) that asserted that CHCs "do not plan to, nor are they seeking to, become providers of abortion."

But the NACHC has no authority to govern what services are provided by any of the approximately 1,250 CHCs that are funded by the federal government, nor should it be assumed that any CHC that decided to provide abortions would feel obligated to notify the association. It is telling that Mr. Gibson studiously avoids mentioning the national campaign that is being conducted by the Reproductive Health Access Project (RHAP) precisely to encourage CHCs to expand into providing abortions, even though this campaign has been prominently mentioned in NRLC and USCCB documents on this subject. The RHAP’s detailed "frequently asked questions about integrating abortion into Community Health Centers" certainly cast doubt on the blanket statements that none of the CHCs are currently performing or planning to perform abortions.

For instance, one of the RHAP’s “frequently asked questions” focuses on CHCs that don’t want to become publicly known as an “abortion service” if they introduce abortion services, yet want to get the word out to their patients without advertising it. To overcome this obstacle, RHAP suggests that the practitioner mention the availability of abortion services to patients during examinations, such as during an annual exam.

Another FAQ deals with CHC administrators who are supportive of adding abortion services, but think that their local board will not allow it. To overcome this obstacle, RHAP recommends scrutinizing the authority of the local board in this matter, and whether it is the Board’s “customary practice” to determine the scope of medical care. RHAP asks, “did they go to the board when colposcopy services were added?”

There is much more of the same kind of thing. You can read it for yourself here.

The truth is, neither Mr. Gibson, nor the NACHC, know how many CHCs are currently performing abortions or prescribing the RU 486 abortion pill. Up until now CHCs have, in the aggregate, received roughly two-thirds of their funds from federal appropriations that have flowed through the Hyde Amendment filter, but the rest of the funding comes from other sources. The RHAP and the Abortion Access Project has produced an entire billing manual to instruct federally funded CHCs how to provide abortions and pay for them with these non-federal funds. Again, Mr. Gibson carefully avoids mentioning this manual, although it has been discussed in NRLC documents on this issue since January. You can view it here.

Everything I have said so far applies to the situation up until now, in which the federal funds received by CHCs flowed mainly through the HHS appropriations bill and therefore are filtered by the Hyde Amendment. But the current dispute is about the $7 billion directly appropriated by the Senate health care bill (H.R. 3590) which would not flow through the regular appropriations bill to which the Hyde Amendment has annually been affixed. In an effort to pass the bill, Secretary Sebelius is asserting that her agency will apply existing regulations on appropriated funds, barring funding of abortions, to the new funds in the bill. But this is a circular argument, because regulations are enforceable only when they rest on some statutory authority — which is, in this case, the Hyde Amendment. Under past administrations, attempts to employ federal administrative authority to extend restrictions on abortion beyond the explicit statutory prohibitions enacted by Congress usually have not fared well in the federal courts (and efforts by state legislatures or other non-federal actors have fared even worse), except in the special area of foreign aid. There is no reason to believe that the pro-abortion Obama Administration would have greater success in applying anti-abortion restrictions to domestic program funds where Congress has failed to do so. Thus, the new HHS memorandum should be recognized as part of an effort to whitewash the abortion policy problems with the Senate health bill, not as a predictor of what will happen with the CHCs if the bill is enacted.

Mr. Gibson goes even further afield in asserting, "None of the money can go to Planned Parenthood or any organization that provides abortions." This is, frankly, nonsense, even under existing law, and still more so under the pending bill. The Planned Parenthood Federation of America (PPFA) is the nation’s largest abortion provider, performing around 300,000 abortions a year. Yet, PPFA affiliates — including the affiliates that run abortion clinics — also receive hundreds of millions of dollars annually in funds that flow through the annual appropriations bill for the Department of Health and Human Services (DHHS), under the Title X family planning program, Medicaid, and other programs. While the Hyde Amendment has prevented the previously appropriated funds from being spent directly on abortions, the fact that a given PPFA affiliate performs abortions certainly has not disqualified it from being a major recipient of Hyde-controlled DHHS funds for other purposes, regrettably. The assertions by Mr. Gibson and his sources that the mere receipt of Hyde-controlled federal funds altogether disqualifies an organization from performing abortions is so obviously wrong that it should make the discerning reader skeptical of his entire thesis.

NRLC has posted a more detailed analysis of the CHC problem in the Senate bill here.

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