Health Care Bill Will Fund Abortions Despite Promised Obama Executive Order

National   |   Steven Ertelt   |   Mar 23, 2010   |   9:00AM   |   WASHINGTON, DC

Health Care Bill Will Fund Abortions Despite Promised Obama Executive Order

by David Christensen
March 23, 2010 Note: David Christensen writes for the Family Research Council and this opinion column originally appeared on the FRC blog The Cloakroom.

You probably heard that Rep. Bart Stupak who had fought valiantly to keep abortion out of the health care bill has now agreed to support the bill with no amendments, no corrections, but merely because the President will issue an Executive Order (EO) purportedly keeping abortion out of the Senate bill. The fact is that the EO would do nothing of the sort.

In fact, and EO simply cannot trump statutory law. If the Senate bill passes, the various abortion funding provisions in it will become the law of the land unfettered by this EO for reasons explained in FRC Action’s score letter.

But assuming the EO had some legal weight, or assume that the Administration really was determined to follow it, several problems would still exist. First, Section 1 of the EO claims to “extend” the Hyde amendment abortion funding restrictions to the health exchanges that would be created under the Senate bill.

It also claims to ensure that conscience protections under the Church amendments (long-standing statute) and the Weldon appropriations provision “remain intact.” The problem is the Senate bill is not bound by the Hyde amendment restricting abortion funding or the Weldon nondiscrimination provision because those only apply to funds appropriated under the Labor, Health and Human Services (LHHS) appropriations bill.

These provisions of law do not constrain the funding under the Senate bill because it directly appropriates funds for new programs that would fund abortion. Moreover, Congress could simply decide not to renew either the Hyde amendment or Weldon amendment this year. What then?

Second, Section 2 of the EO actually reaffirms the subsidies for abortion covering plans in the Senate bill Sec. 1303 (p. 2070) which expressly authorizes plans in each exchange to include elective abortion. It states that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of services described in subparagraph (B)(i) or (B)(ii) as part of such benefits for the plan year.”

(B)(i) pertains abortions that are not allowed to be funded currently under the LHHS bill, meaning the Hyde amendment, eg., elective abortion, and (B)(ii) refers to those that are allowed under the LHHS bill, meaning Hyde allowable abortions, e.g., life, rape and incest abortion.

So the Senate bill clearly authorizes plans in the exchanges which receive federal subsidies to cover elective abortion. This creates two problems. How does EO maintain the Hyde amendment, when the Senate bill definition of elective abortions is based on a reference to those abortions the government cannot fund under current LHHS law? To claim that the EO incorporates Hyde when the bill actually allows those abortions to be covered that Hyde does not allow is a contradiction.

Second, even if the bill merely defined elective abortion without cross referencing Hyde, the EO clearly maintains the current bill’s funding authorization for plans that include elective abortion among its covered benefits. In addition to preventing payment for abortion, this is precisely the second thing Hyde does not allow. Simply saying that the tax credits can’t pay for abortion, says nothing about maintaining the principle in Hyde that prevents subsides for health care plans that cover abortion. That’s current law, vitiated by the Senate bill. The EO does not even attempt to change this.

Third, the EO maintains the requirement in the Senate bill (Sec. 1303, p. 2072) for individuals to make a second abortion fee payment for their plans that include abortion coverage. The text of the Senate bill (p. 2072) makes clear that each “issuer of the plan shall…..collect from each enrollee in the plan … a separate payment for…an amount equal to the portion of the premium to be paid directly by the enrollee for coverage under the plan of services other than services described in paragraph (1)(B)(i)”, meaning non-abortion services.

And the insurer will collect a “payment” for the “value of the coverage of services described in paragraph (1)(B)(i)”—that is elective abortions. The bill requires the insurer to “deposit all such separate payments into separate allocation accounts” that will consist of “all payments described in subparagraph (B)(i)(II) [the cost of abortion excluding tax credits] into a separate account that consists solely of such payments and that is used exclusively to pay for services described in paragraph (1)(B)(i) [elective abortion].”

So, each person in a plan that covers elective abortion will be required to pay make an abortion fee and a separate for the remaining cost of the plan. The fact that the insurance company will keep it in two bank accounts does not maintain current law, since it goes beyond Hyde by subsidizing abortion covering plans. And it does so requiring everyone to pay an abortion surcharge, which in essence pays for other people’s abortions. How does this maintain current law?

The EO merely tells HHS to write regulations telling insurers how to collect the abortion charge and keep it in separate accounts from the federal subsidies. It does nothing to maintain current law.

Fourth, section 3 of the EO only discusses direct funding abortion in the context of the community health center (CHC) program in the Senate bill (Sec. 10503, p. 2355). Again, this EO would not trump the Senate bill, and the CHC getting federal dollars will be allowed to pay for abortion. But noticeably absent is any mention of other abortion funding problems in the Senate bill.

The EO does not address the problem of direct funding for abortion in the co-op program (p. 180 (Sec. 1322). The EO does not mention any restriction of direct funding for abortion in the high risk insurance pool program (Sec. 1101, p. 45). Nor does the EO address an abortion mandate in Sec. 1001 (p. 21). The provision requires regulations for preventative services.

If the Administration chooses to include abortion, then the required coverage of preventative services will mean that every individual and group health plan will necessarily include abortion. The EO does not address this abortion provision at all.

Here’s the text of the Hyde amendment. So how does this EO or the Senate bill maintain current law? Where does current allow say the federal government can fund plans that include abortion, or force people to pay an abortion surcharge? And again, since the Hyde amendment pertains to “funds appropriated in this Act”, how does it prevent abortions from being directly funded in the Senate bill? It doesn’t.

FY09 LHHS Approps., P.L. 111-8:

SEC. 507. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall

be expended for any abortion.

(b) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.

(c) The term ‘‘health benefits coverage’’ means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.

SEC. 508. (a) The limitations established in the preceding section shall not apply to an abortion —

(1) if the pregnancy is the result of an act of rape or incest; or

(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition

caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is


(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State’s or locality’s contribution of Medicaid matching funds).

(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State’s or locality’s contribution of Medicaid matching funds).

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