New Catholic Bishops Memo: Abortion in Health Care Despite Obama Order

National   |   Steven Ertelt   |   Mar 30, 2010   |   9:00AM   |   WASHINGTON, DC

New Catholic Bishops Memo: Abortion in Health Care Despite Obama Order

by Steven Ertelt Editor
March 30
, 2010

Washington, DC ( — The nation’s Catholic bishops have released a new detailed legal memorandum analyzing both the health care bill President Barack Obama signed into law and the executive order he issued. The memo says abortion funding is still present in the new law despite the executive order.

It confirms what other USSCB officials and pro-life groups have said about the abortion funding the the failureof the executive order to correct the problems.

Anthony Picarello, General Counsel for the U.S. Conference of Catholic Bishops and Michael Moses, the USCCB Associate General Counsel, authored the extensive memo.

"Although we wish it were otherwise, we must conclude that the Patient Protection and Affordable Care Act, poses serious problems in these two areas [abortion funding and conscience protection] and that the Executive Order does not correct those problems," they conclude.

They say the health care bill violates both provisions of the Hyde amendment — which, only pertaining to the federal budget, stops abortion funding and funding abortions in federal health insurance programs.

The attorneys note that, since the bill lacks any specific ban on abortion funding, "federal funds that PPACA appropriates anywhere else, including, at a minimum, Community Health Centers, are unrestricted by Hyde and so must be used to pay for abortions."

"Thus, the stated purpose of this provision of the Executive Order is commendable, but the provision is ineffective apart from the two particular contexts where Hyde-like statutory protections actually apply," they write.

The attorneys say court rulings make it so the federal government is required to pay for abortions if an abortion funding ban is not present in language dealing with health issues. That means the health care bill will fund abortions even without explicit language authorizing funding.

"Courts have held that when Congress authorizes the provision of comprehensive health services, it must pay for ‘medically necessary abortions,’ except insofar as Congress expressly excludes abortion funding," they write. "In the more than thirty years since [approving Hyde in the 1970s], courts have repeatedly and consistently interpreted statutory language that describes relatively broad categories of medical services to compel—not just allow, but compel—abortion funding."

They say the health care bill specifically prohibits abortion funding vis-a-vis school-based health centers and tax credits and cost-sharing reduction payments.

"But this leaves all remaining federal funds appropriated under the Act without Hyde restrictions—which means that those funds must be used to pay for abortions where the statutory language describing the services is broad enough to encompass abortion," the Catholic attorneys write.

That opens massive abortion funding using the millions the bill authorizes for Community Health Centers, which already do abortions in limited circumstances such as rape and incest.

"The problem is that PPACA makes an appropriation to the CHC program without an accompanying Hyde Amendment, thereby depriving the regulations of any statutory basis as applied to the funds that PPACA appropriates for CHCs," they write.

The health care bill also authorizes "tax credits to pay overall premiums for health plans covering elective abortions" even though there is some limiting language in place.

Concerning the executive order, the attorneys say Obama can’t make law by executive order and can’t trump via an executive order the pro-abortion language in the health care bill. Obama also can’t interpret the law and determine that it doesn’t mean abortions will be funded, since that role is reserved to the courts.

Knowing this, they say the executive order mostly restates the abortion language in the Senate bill allowing abortion funding. They also say the order mis-describes some of the abortion language

"To the extent the Executive Order suggests that existing law would subject PPACA funds to annual Hyde restrictions, it is inaccurate. And any enforcement based on that inaccurate account of the law would be invalidated in court," they write.

The attorneys also devote extensive time talking about the lack of conscience protections for medical professionals in the health care bill and they say the executive order does nothing to fix these problems.

"In sum, the Executive Order cannot and does not fix the statutory problems of direct funding of abortion at CHCs, and of funding insurance plans that cover abortions; it cannot and does not make up for the absence of conscience protections that are missing from the statute; and it does not strengthen the conscience protections that are there, though it could have in certain limited ways," they conclude. "Where the Order purports to fix a shortcoming of the Act in these areas, it is highly likely to be legally invalid; and where the Order is highly likely to be legally valid, it does nothing to fix those shortcomings."

"Thus, the shortcomings of the Act remain, and correspondingly, the need for fixes remains. Only Congress, with the consent of the President, has the legal authority to make those fixes. Congress and the President should act promptly to do so; they should not await courts’ likely invalidation of the few provisions of the Executive Order that even purport to be fixes,’ they say.

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Read the full memo –

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